Anderson v. Commissioner of Correction ( 2020 )

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LONNIE ANDERSON v. COMMISSIONER
OF CORRECTION
(AC 42515)
Lavine, Bright and Beach, Js.*
Syllabus
The petitioner, who previously had been convicted of the crimes of assault
in the first degree with a firearm and assault of a peace officer with a
firearm, sought a writ of habeas corpus, claiming, inter alia, that his
trial counsel, B, rendered ineffective assistance by failing to present
certain evidence to support his request that the trial court instruct
the jury on self-defense. The petitioner’s conviction stemmed from an
incident in which state marshals, wearing police attire and badges, were
attempting to serve a capias warrant on the petitioner at the front door
of his residence. When the marshals informed him that they intended
to take him into custody, the petitioner drew a firearm and began firing
at the marshals. The marshals were unarmed and fled from the residence.
The petitioner argued on appeal that B should have introduced the
testimony of three individuals, J, H, and L, who had been present at
various points in the confrontation and that, if he had done so, the trial
court would have given the requested instruction on self-defense. The
habeas court rendered judgment denying the habeas petition and, there-
after, denied the petition for certification to appeal, and the petitioner
appealed to this court. Held that the habeas court did not abuse its
discretion in denying the petition for certification to appeal; it was not
debatable among jurists of reason that B’s performance did not prejudice
the petitioner as the petitioner failed to demonstrate that there was a
reasonable probability that the outcome of his criminal trial would have
been different had B presented the testimony of J, H, and L, as the facts
they would have testified to would not have justified a self-defense
instruction, in light of the evidence that the marshals were readily identi-
fiable, there was no evidence that any marshal unholstered or brandished
a firearm while trying to take the petitioner into custody, and it was
undisputed that at the time the petitioner was firing his gun, the marshals
were fleeing from the petitioner.
Argued May 20—officially released October 20, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, and tried
to the court, Sferrazza, J.; judgment in part denying
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, former
state’s attorney, and Emily Dewey Trudeau, assistant
state’s attorney, for the appellee (respondent).
Opinion
BRIGHT, J. The petitioner, Lonnie Anderson, appeals,
following the denial of his petition for certification to
appeal, from the judgment of the habeas court denying
count one of his amended petition for a writ of habeas
corpus.1 On appeal, the petitioner contends that the
habeas court abused its discretion by denying his peti-
tion for certification to appeal because he properly had
established in his petition for a writ of habeas corpus
that his constitutional right to the effective assistance
of trial counsel had been violated during his criminal
trial when a jury found him guilty of assault in the first
degree with a firearm and assault of a peace officer
with a firearm. We conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal and, accordingly, dismiss the petition-
er’s appeal.
The record reveals the following relevant underlying
facts, which the jury at the petitioner’s criminal trial
reasonably could have found, and procedural history
that are relevant to our consideration of the petitioner’s
claim. On October 6, 2009, State Marshals Arthur Quinn,
Charles Valentino, Joseph Butler, and Richard Krueger
went to 434 Indian Avenue in Bridgeport to serve a
capias warrant authorizing the marshals to take the
petitioner into custody for failing to appear in a child
support case. The marshals arrived at approximately
7:45 p.m. Butler and Krueger went to the rear of the
address. Quinn and Valentino walked to the front door,
and Valentino knocked on the door. Quinn and Valen-
tino wore clothing that identified them as state marshals
and displayed badges. Neither marshal carried a fire-
arm. Valentino, who was wearing a marshal’s hat, was
in possession of the capias warrant and wore a utility
belt on which were attached handcuffs, gloves, Mace,
and a police baton.
An eight year old relative of the petitioner answered
the door, and the marshals asked to speak with the
petitioner. The child left and returned with Lyman
Anderson, the petitioner’s brother. Utilizing a photo-
graph of the petitioner, Quinn and Valentino recognized
that Lyman Anderson was not the subject of the capias
warrant. Lyman Anderson went back into the home,
and the petitioner came to the front door.
The petitioner arrived at the front door armed with
a nine millimeter, semiautomatic pistol that he kept
concealed in his sweatpants. Upon inquiry about his
identity, the petitioner falsely replied that he was John
Anderson. Recognizing the petitioner, the marshals con-
fronted him with the photograph, informed him that he
had missed a court date, and stated that they intended
to take him into custody. The petitioner took a step
back, drew his pistol, and chambered a round. Valentino
spotted the firearm and shouted ‘‘[g]un!’’ The marshals
ran off the doorstep and headed in opposite directions.
Valentino heard five to six gunshots and perceived
a bullet pass close by his head. As Valentino sought
cover behind a parked van, he heard more shots. Valen-
tino observed, through the vehicle’s windows, the peti-
tioner standing on the top step of the stoop and shooting
toward Quinn. Valentino observed the petitioner dis-
card an ammunition magazine and insert a second mag-
azine into the pistol.
During his rapid retreat, Quinn also heard gunshots.
Quinn realized that a bullet had struck his left foot.
Quinn sustained a second gunshot wound to his right
forearm. A neighbor emerged from his home with a
towel to help stop the bleeding from Quinn’s arm. Also
hearing gunshots, Butler and Krueger ran toward the
front of the residence from their position at the rear of
the residence.
After shooting at Quinn and Valentino, the petitioner
returned to the residence. Lyman Anderson attempted
to calm the petitioner and suggested that he go outside
with his hands raised to surrender. The petitioner, at
first, told Lyman Anderson that he did not want to do
so because he was worried that the marshals would
fire at him.
A few minutes later, Bridgeport Police Officer Hugo
Stern received a call, via a police broadcast, about the
incident. Stern arrived at the Indian Avenue residence
and saw state marshals hiding near a red car. Stern
drew his weapon and saw someone matching the
description of the shooter. That person stood on the
top step of the entryway. Stern aimed his gun at that
person, who was the petitioner, and ordered the peti-
tioner to raise his hands. The petitioner complied.
As Stern cautiously approached the petitioner, he
noticed that the petitioner wore an empty holster on
his right hip. Stern ordered the petitioner to lie slowly
on the ground, and the petitioner complied. Stern then
directed the petitioner to spread his arms and legs. The
petitioner appeared to cooperate. After Stern holstered
his own weapon and attempted to handcuff the peti-
tioner, the petitioner resisted by rising into a crouch
and becoming combative. Stern saw the petitioner
reach into the waistband of his pants to retrieve an
item. Bridgeport Police Officer Bobby Jones came to
Stern’s assistance, and the officers subdued the peti-
tioner. As the officers rolled the petitioner over, they
observed that the petitioner was lying on top of a semi-
automatic handgun. The officers seized the weapon.
Subsequent testing demonstrated that the weapon was
the same gun from which several shots had been fired
at the scene. Additionally, the weapon was loaded with
a magazine full of cartridges.
The state charged the petitioner with two counts
of attempt to commit murder in violation of General
Statutes §§ 53a-49 and 53a-54a (a), one count of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (5), one count of assault of a peace officer in
violation of General Statutes § 53a-167c and, for each
count, with the commission of a class A, B, or C felony
with a firearm in violation of General Statutes § 53-
202k.2
During the jury trial, the petitioner’s trial counsel, J.
Patten Brown III, filed a request to charge in which
Brown asked the court to provide the pattern jury
instruction on self-defense pursuant to General Statutes
§ 53a-19. The court declined Brown’s request to charge
the jury on self-defense on the ground that there was
insufficient evidence to support the theory that the offi-
cers were approaching the petitioner in such a manner
prior to the shooting that would justify a self-defense
charge.
The jury found the petitioner guilty of assault in the
first degree and assault of a peace officer, and his sen-
tence was enhanced on each count pursuant to § 53-
202k for the commission of a class A, B, or C felony with
a firearm. The petitioner was acquitted of the remaining
charges. The court sentenced the petitioner to a total
effective sentence of eleven years of incarceration fol-
lowed by five years of special parole.
On September 30, 2011, the petitioner filed an appeal
to the Appellate Court. Brown represented the peti-
tioner at the criminal trial and on direct appeal. On
July 26, 2012, Brown withdrew the direct appeal after
consulting with the petitioner. On March 10, 2015, the
self-represented petitioner filed a petition for a writ of
habeas corpus and, on August 31, 2018, the petitioner
filed the operative amended petition for a writ of habeas
corpus. In the amended petition, the petitioner asserted
the following claims: (1) his constitutional right to the
effective assistance of trial counsel was violated and
(2) his constitutional right to the effective assistance
of appellate counsel was violated.
As to his claim of ineffective assistance of trial coun-
sel, the petitioner argued that Brown failed to present
evidence that was available to him to support his self-
defense theory. Specifically, the petitioner argued that
Brown’s performance was deficient because he had
failed to present the testimony of Bridgeport Police
Officer Juan Hernandez, Bridgeport Police Officer
Bobby Jones, and Lyman Anderson. The petitioner
argued that he was prejudiced by Brown’s failures
because, had the evidence been presented, the trial
court would have given the requested instruction on
self-defense and it is reasonably probable that the jury
would have concluded that the state failed to disprove
self-defense beyond a reasonable doubt.
On November 8, 2018, the habeas court denied the
amended petition with regard to the petitioner’s claim
that the petitioner’s constitutional right to the effective
assistance of trial counsel had been violated. In its mem-
orandum of decision, the court discussed the testimony
on which the petitioner’s claim is based. ‘‘The petitioner
contends that potential testimony could have been elic-
ited from Lyman Anderson, Officer Jones, and Officer
Juan Hernandez that at least one of the marshals at the
scene was armed. Further, Lyman Anderson could have
testified that [the petitioner] discharged his pistol
toward Quinn and Valentino in response to one of the
marshal’s attempts to barge into the residence and
grab the petitioner.’’
As to Lyman Anderson, the court found: ‘‘It was the
prosecution that called Lyman Anderson to testify at
the criminal trial. Lyman related that, when he went to
the front door that his young nephew had opened, he
saw four uniformed marshals, one of whom carried a
handgun on his person. This testimony, however, con-
trasted with the statement Lyman gave to the police on
the evening of the shooting. In that recorded statement,
given a few hours after the incident, Lyman reported
that there were two marshals on the doorstep, neither
of whom appeared armed with a gun.
‘‘In that recording, Lyman apparently recounted that
he saw the petitioner raise his gun and begin firing at
the marshals. At the criminal trial, Lyman acknowl-
edged that he had told this version to the police, but
he now denied its accuracy. His trial testimony reflected
that he was not present near the entryway and was
elsewhere in the house when he heard gunfire.
‘‘Both in his recorded statement to the police and
in his testimony at the criminal trial, Lyman recalled
overhearing his brother lie about his identity. Lyman
agreed in that testimony that, once the marshals ascer-
tained he was not Lonnie, he went upstairs, and the
petitioner then came downstairs to speak with the
marshals.
‘‘At the habeas trial, Lyman testified that Attorney
Brown and the defense investigator interviewed him
before the criminal trial. He avows that he told them
a version of the incident that contradicted both his
statement to the police and his eventual trial testimony.
He now swears that the marshals never mentioned that
they were there to execute the capias; that he saw a
marshal attempt to bull his way through the front door,
which was only slightly open; that the marshal tried to
grab for the petitioner; that four or five marshals were
there and all were armed with handguns; and that the
marshals initiated the physical conflict.’’ (Emphasis
omitted.)
The court then discussed the testimony of Jones and
Hernandez. ‘‘Officers Bobby Jones and Juan Hernandez,
Jr., also testified at the habeas trial. They stated that
one of the four marshals had a firearm, but neither
identified Quinn nor Valentino as that marshal. Import-
antly, no witness ever stated that a marshal brandished
a handgun while at the doorstep. All witnesses con-
curred on every occasion that the petitioner began firing
at the marshals as they fled, as fast as they could, upon
seeing the petitioner’s pistol.’’
On the basis of the evidence presented to it, the
habeas court concluded the following: ‘‘Thus, even if the
testimony of Officers Jones and Hernandez supported
a finding that some, unidentified marshal had a handgun
on his person, no evidence would have warranted a
self-defense instruction under all the circumstances of
this case. The jury necessarily determined by its verdict
that the state had proved, beyond a reasonable doubt,
that Marshals Quinn and Valentino were reasonably
identifiable peace officers under . . . § 53a-167c (a)
and that the petitioner intended to prevent [them] . . .
from performing [their] duties . . . while such peace
officer[s] [were] acting in the performance of [their]
duties. Nor does the habeas testimony of Lyman Ander-
son assist the petitioner in that regard. As mentioned
above, Lyman denied being present during the incident
in his criminal trial testimony. His only contribution
could be that one of the two marshals at the doorstep
possessed a gun on his person but not that that marshal
ever drew the weapon.
‘‘It must be kept in mind that General Statutes § 53a-
23 commands that a ‘person is not justified in using
physical force to resist an arrest by a reasonably identifi-
able peace officer . . . whether such arrest is legal or
illegal.’ While a person is justified in defending oneself
from ‘egregiously unlawful conduct—such as an unpro-
voked assault’ by a peace officer, § 53a-23 ‘was intended
to require an arrestee to submit to an arrest, even
though he believes . . . that the arrest was . . .
unlawful.’ State v. Davis, 261 Conn. 553, 568 [804 A.2d
781] (2002) . . . . General Statutes § 53a-3 (9) defines
‘peace officer’ to include state marshals.
‘‘In the petitioner’s case, there is no claim that taking
him into custody under the capias was illegal. Nor is
there any contention that the marshals were employing
excessive force. Assuming, arguendo, that one of the
marshals tried to grab hold of the petitioner’s arm, § 53a-
23 would negate the viability of a self-defense claim
because every arrest entails some degree of physical
restraint. Self-defense, in an arrest situation, only justi-
fies the use of defensive force to ward off abusive vio-
lence; a claim which never arose in the petitioner’s case.
Consequently, the court determines that the petitioner
has failed to meet his burden of proving either prong
of the [Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] standard with
respect to Attorney Brown’s trial assistance.’’ (Empha-
sis in original.) On November 8, 2018, the habeas court
denied the amended petition with regard to the petition-
er’s claim that his constitutional right to the effective
assistance of trial counsel had been violated, and, on
November 20, 2018, the habeas court denied the peti-
tioner’s petition for certification to appeal. This
appeal followed.
The petitioner claims that the habeas court erred in
concluding that he failed to show both that Brown’s
representation was deficient and that he was prejudiced
by Brown’s errors. In particular, he argues that the
evidence presented at the habeas trial proved that
Brown had evidence available to him to show that
Valentino was armed and that Valentino and Quinn
grabbed for the petitioner, which caused him reason-
ably to fear for his life, thereby entitling him to a self-
defense instruction. We are not persuaded.
We first set forth the standard of review relevant to
our resolution of this appeal. ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. . . . A peti-
tioner may establish an abuse of discretion by demon-
strating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are ade-
quate to deserve encouragement to proceed further.
. . . The required determination may be made on the
basis of the record before the habeas court and applica-
ble legal principles. . . .
‘‘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 this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘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. . . .
‘‘In Strickland v. Washington, [supra, 466 U.S. 687],
the United States Supreme Court established that for
a petitioner to prevail on a claim of ineffective assis-
tance of counsel, he must show that counsel’s assis-
tance was so defective as to require reversal of [the]
conviction . . . . That requires the petitioner to show
(1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . . Because both prongs . . . must
be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Internal quotation marks omitted.) Bagalloo
v. Commissioner of Correction, 195 Conn. App. 528,
533–34, 225 A.3d 1226, cert. denied, 335 Conn. 905, 226
A.3d 707 (2020). ‘‘To satisfy the prejudice prong, a claim-
ant must demonstrate that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Breton v. Commis-
sioner of Correction, 325 Conn. 640, 669, 159 A.3d 1112
(2017). ‘‘A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.’’ Strick-
land v. Washington, supra, 466 U.S. 694. ‘‘In its analysis,
a reviewing court may look to the performance prong
or to the prejudice prong, and the petitioner’s failure
to prove either is fatal to a habeas petition.’’ (Internal
quotation marks omitted.) Delvecchio v. Commissioner
of Correction, 149 Conn. App. 494, 500, 88 A.3d 610,
cert. denied, 312 Conn. 904, 91 A.3d 906 (2014).
Accordingly, in order to determine whether the
habeas court abused its discretion in denying the peti-
tion for certification to appeal, we must consider the
merits of the petitioner’s underlying claim that his crimi-
nal trial counsel provided ineffective assistance. With
the foregoing principles in mind, we now address the
petitioner’s claim that Brown failed to present sufficient
evidence that was available to him at the petitioner’s
criminal trial to support his request that the court
instruct the jury on self-defense.
We first set forth the well settled substantive princi-
ples underlying a defendant’s claim of self-defense.
‘‘[T]he fair opportunity to establish a defense is a funda-
mental element of due process of law . . . . This fun-
damental constitutional right includes proper jury
instructions on the elements of self-defense so that the
jury may ascertain whether the state has met its burden
of proving beyond a reasonable doubt that the assault
was not justified. . . . Thus, [i]f the defendant asserts
[self-defense] and the evidence indicates the availability
of that defense, such a charge is obligatory and the
defendant is entitled, as a matter of law, to [an] . . .
instruction [on self-defense]. . . . Before an instruc-
tion is warranted, however, [a] defendant bears the
initial burden of producing sufficient evidence to inject
self-defense into the case. . . . To meet that burden,
the evidence adduced at trial, whether by the state or
the defense, must be sufficient [if credited by the jury]
to raise a reasonable doubt in the mind of a rational
juror as to whether the defendant acted in self-defense.
. . . This burden is slight, however, and may be satis-
fied if there is any foundation in the evidence [for the
defendant’s claim], no matter how weak or incredible
. . . .’’ (Internal quotation marks omitted.) State v. Best,
168 Conn. App. 675, 686, 146 A.3d 1020 (2016), cert.
denied, 325 Conn. 908, 158 A.3d 319 (2017). ‘‘However
low the evidentiary standard may be, it is nonetheless
a threshold the defendant must cross. The defendant
may not ask the court to boost him over the sill upon
speculation and conjecture.’’ (Internal quotation marks
omitted.) State v. Montanez, 277 Conn. 735, 750, 894
A.2d 928 (2006).
‘‘[I]n order sufficiently to raise self-defense, a defen-
dant must introduce evidence that the defendant rea-
sonably believed his adversary’s unlawful violence to
be imminent or immediate. . . . Under . . . § 53a-19
(a), a person can, under appropriate circumstances,
justifiably exercise repeated deadly force if he reason-
ably believes both that his attacker is using or about
to use deadly force against him and that deadly force
is necessary to repel such attack. . . . The Connecticut
test for the degree of force in self-defense is a subjec-
tive-objective one. The jury must view the situation
from the perspective of the defendant. Section 53a-
19 (a) requires, however, that the defendant’s belief
ultimately must be found to be reasonable. . . . More-
over, the evidence must be such that the jury must not
have to resort to speculation in order to find that the
defendant acted in justifiable self-defense.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Lewis, 245 Conn. 779, 811, 717 A.2d 1140 (1998).3
On appeal, the petitioner argues that (1) Jones and
Hernandez could have testified that they had observed
a marshal carrying a gun, in contravention of the testi-
mony of Quinn and Valentino that neither of them was
armed, and (2) Lyman Anderson could have testified
that the marshals attempted to barge through the door
into the petitioner’s apartment and attempted to grab
the petitioner, an action that led to the petitioner shoot-
ing at the marshals.4 The petitioner argues that the
aforementioned evidence would have supported the
theory of self-defense that Brown had pursued. The
petitioner argues further that there is a reasonable prob-
ability that the outcome of the criminal trial would have
been different and more favorable to the petitioner if
Brown had presented such evidence. We disagree.
Although the habeas court concluded that the peti-
tioner failed to establish both deficient performance
and prejudice, it is clear to us that the focus of the
court’s analysis was on the prejudice prong. The court
accepted that there was evidence before it that at least
one of the marshals attempting to apprehend the peti-
tioner was armed. Although the petitioner argues that
the court was incorrect in concluding that it could not
identify the armed marshal, that issue was not particu-
larly germane to the court’s analysis.5 The court also
accepted, for purpose of its analysis, Lyman Anderson’s
testimony that Quinn and Valentino attempted to grab
the petitioner before the petitioner began firing. Never-
theless, the court concluded that the evidence from
Jones, Hernandez, and Lyman Anderson not offered
during the criminal trial would have made no difference
because the facts to which they would have testified
would not have justified a self-defense instruction or
possibly affected the outcome of the criminal trial. The
court reached this conclusion for three reasons. First,
there was no evidence that any marshal unholstered or
brandished a firearm while trying to take the petitioner
into custody. Second, the evidence was clear, and the
jury necessarily found, that Quinn and Valentino were
clearly identifiable as marshals when they confronted
the petitioner, and there was no evidence that they used
excessive force when trying to detain the petitioner or
that they were acting illegally in enforcing the capias.
Third, Quinn and Valentino were both fleeing from the
petitioner ‘‘as fast as they could,’’ when he began firing
at them.
The petitioner does not dispute that no marshal ever
removed a gun from his holster. Nor does he dispute
that Quinn and Valentino were fleeing from the peti-
tioner when he fired at them. He also does not dispute
Lyman Anderson’s statements, to the police, at the peti-
tioner’s criminal trial, and at the habeas trial, that Quinn
and Valentino were readily identifiable as marshals. He
similarly does not dispute Lyman Anderson’s testimony
that the petitioner confirmed that he knew that the
individuals at whom he fired his weapon were marshals.
Furthermore, the petitioner conceded in his principal
brief that ‘‘the jury accepted that the marshals were
reasonably identifiable peace officers based on the
criminal trial evidence . . . .’’
The only argument raised by the petitioner in
response to these facts is that had the jury heard the
evidence presented at the habeas trial, it would have
concluded that Quinn and Valentino were not identifi-
able as marshals. The problem with the petitioner’s
argument is that the only person who testified that he
did not recognize marshals at the scene of the shooting
was Jones, and that testimony occurred at the criminal
trial.6 In fact, Jones’ testimony at the habeas trial under-
mines the petitioner’s argument because he testified
that he saw a marshal pointing a gun while hiding behind
a parked vehicle after the shooting had occurred.7 Simi-
larly, Hernandez testified at the habeas trial that he saw
a marshal with a gun when he arrived on the scene.8
There simply was no evidence presented at the habeas
trial to support a claim that Quinn and Valentino were
not identifiable as marshals.
On the basis of the habeas court’s factual findings,
which are fully supported by the record, we agree with
the habeas court’s conclusion that the petitioner failed
to prove any prejudice arising from Brown’s failure to
present evidence from Jones, Hernandez and Lyman
Anderson as suggested by the petitioner. First, the
habeas court was correct that, even assuming arguendo
that one of the marshals tried to grab the petitioner’s
arm, because Quinn and Valentino were reasonably
identified as peace officers and there was no evidence
that they used excessive force, § 53a-239 would negate
the viability of a self-defense claim.
The petitioner makes three arguments to the con-
trary, none of which we find persuasive. First, the peti-
tioner argues that § 53a-23 does not necessarily pre-
clude a self-defense instruction, even if the marshals
were reasonably identifiable as peace officers, if there
was evidence that they entered the petitioner’s apart-
ment without a warrant. In support of this argument,
the petitioner relies on a single sentence in In re Adal-
berto S., 27 Conn. App. 49, 58, 604 A.2d 822, cert. denied,
222 Conn. 903, 606 A.2d 1328 (1992), wherein this court
stated: ‘‘[A]n unlawful warrantless intrusion into the
home creates a privilege to resist arrest.’’ The court in
In re Adalberto S., cited to our Supreme Court’s holding
in State v. Gallagher, 191 Conn. 433, 442, 465 A.2d 323
(1983), as support for this statement. The problem for
the petitioner is that our Supreme Court later overruled
Gallagher in part and held that ‘‘the right to challenge
an illegal entry remains a privilege, provided no new
crime is committed.’’ State v. Brocuglio, 264 Conn. 778,
793, 826 A.2d 145 (2003). Furthermore, our Supreme
Court noted in Brocuglio that, even under Gallagher,
the right to resist a warrantless entry into one’s home
was limited: ‘‘Under Gallagher, the defendant here had
a common-law right to resist, short of committing an
assault, an illegal entry by the police into his home.’’
(Emphasis added.) Id., 795. Consequently, any right the
petitioner might have had to resist a warrantless entry
into his home by the marshals unquestionably did not
include firing on them.
The petitioner further argues that neither the state
nor the court raised § 53a-23 as an issue at the petition-
er’s criminal trial, so there was no basis for the habeas
court to rely on it in this case. We disagree. Because
the court in the criminal trial concluded that the facts
otherwise did not warrant a self-defense instruction, it
was not required to consider the statutory bar in § 53a-
23. Furthermore, there is nothing in the wording of the
statute that makes its application optional.
Alternatively, the petitioner argues that had the jury
seen the evidence presented at the habeas trial, it would
have concluded that Quinn and Valentino were not rea-
sonably identifiable as marshals. For the reasons pre-
viously discussed in this opinion, such an argument is
contrary to the facts and without merit.
Additionally, the fact that Quinn and Valentino indis-
putably were fleeing, as fast as they could, from the
petitioner when he fired on them precluded any claim of
self-defense. The evidence presented at the petitioner’s
criminal trial, and not disputed before the habeas court,
was that the marshals, who were in the process of trying
to take the petitioner into lawful custody, immediately
retreated from the petitioner when he pulled out his
firearm, and they were in flight at the time the petitioner
fired his gun at them. There simply is no basis for the
court to give a self-defense instruction when the only
evidence presented to the jury is that the marshals were
fleeing from the petitioner when the petitioner fired the
weapon. See, e.g., State v. Erickson, 297 Conn. 164, 197,
997 A.2d 480 (2010); State v. Lewis, 220 Conn. 602,
619–20, 600 A.2d 1330 (1991); Commonwealth v.
Miranda, 484 Mass. 799, 811–13, 146 N.E.3d 435 (2020);
State v. Gonzalez, 143 N.M. 25, 30, 172 P.3d 162 (2007);
State v. Niewiadowski, 120 N.M. 361, 366, 901 P.2d 779
(App.), cert. denied, 120 N.M. 184, 899 P.2d 1138 (1995).
Put another way, in light of the undisputed evidence
that Valentino and Quinn were fleeing when the peti-
tioner shot at them, there was insufficient evidence ‘‘to
raise a reasonable doubt in the mind of a rational juror
as to whether the defendant acted in self-defense.’’
(Internal quotation marks omitted.) State v. Best, supra,
168 Conn. App. 686.
On the basis of the evidence presented at the petition-
er’s criminal trial, the jury, even if it had heard all of
the evidence presented to the habeas court, reasonably
could not have found that, at the time the petitioner
fired his gun at the marshals, it was objectively reason-
able for the petitioner to have believed both that the
marshals were about to use deadly physical force or
inflict great bodily harm on him, and that it was neces-
sary for the petitioner to shoot at the marshals to pre-
vent such conduct.
Accordingly, the petitioner has failed to prove that
there is a reasonable probability that the outcome of
his criminal trial would have been different had Brown
performed as the petitioner claims he should have. Fur-
thermore, we conclude that it is not debatable among
jurists of reason that Brown’s performance did not prej-
udice the petitioner and, thus, the habeas court did not
abuse its discretion in denying the petitioner’s petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The habeas court granted relief as to count two of the amended petition
which alleged that the petitioner’s constitutional right to the effective assis-
tance of appellate counsel had been violated. The habeas court concluded
that counsel had performed deficiently by withdrawing the appeal and that
the petitioner was prejudiced by the withdrawal. Consequently, the habeas
court reinstated the petitioner’s right to directly appeal the underlying con-
viction. See Kaddah v. Commissioner of Correction, 299 Conn. 129, 133
n.7, 7 A.3d 911 (2010). This aspect of the habeas court’s ruling is not at
issue in this appeal.
2
‘‘[Section] 53-202k is a sentence enhancement provision and not a sepa-
rate crime. . . . [Our Supreme Court] [has] interpreted § 53-202k to require
that the jury, rather than the court, determine whether a firearm was used
in the commission of the underlying felony.’’ (Citation omitted.) State v.
Nash, 316 Conn. 651, 656 n.6, 114 A.3d 128 (2015). General Statutes § 53-
202k provides: ‘‘Any person who commits any class A, B or C felony and
in the commission of such felony uses, or is armed with and threatens the
use of, or displays, or represents by his words or conduct that he possesses
any firearm, as defined in section 53a-3, except an assault weapon, as defined
in section 53-202a, shall be imprisoned for a term of five years, which shall
not be suspended or reduced and shall be in addition and consecutive to
any term of imprisonment imposed for conviction of such felony.’’
3
General Statutes § 53a-19 (a) provides in relevant part: ‘‘[A] person is
justified in using reasonable physical force upon another person to defend
himself . . . from what he reasonably believes to be the use or imminent use
of physical force, and he may use such degree of force which he reasonably
believes to be necessary for such purpose; except that deadly physical force
may not be used unless the actor reasonably believes that such other person
is (1) using or about to use deadly physical force, or (2) inflicting or about
to inflict great bodily harm.’’
4
The petitioner also asserts in his principal brief that, ‘‘although the
marshals claimed to be identifiable as marshals, none of the other witnesses
at the scene recognized them as marshals.’’ This claim is without merit. As
the habeas court noted, Lyman Anderson, both in his recorded statement
to the police and in his testimony at the petitioner’s criminal trial stated
that Quinn and Valentino were recognizable as marshals from their clothing.
At the habeas trial, he testified that they were clearly wearing police attire,
had badges on, shirts that said police and one of the marshals had a shirt
that said marshal. In addition, Lyman Anderson testified at the criminal trial
that the petitioner did not want to go outside after firing his gun because
he was worried that the marshals would fire back at him. Furthermore, the
petitioner’s reliance on Jones’ statements at the criminal trial that after the
shooting he only saw civilians and not marshals; see footnote 6 of this
opinion; makes little sense. That testimony is inconsistent with and contra-
dicted by the evidence from the habeas trial, on which the petitioner relies,
that Jones saw a marshal with a gun. It is illogical to argue that the jury
could rely both on Jones’ testimony that he saw a marshal pointing a gun
and also his testimony that he did not see any marshals. Thus, the habeas
court’s factual finding that Quinn and Valentino reasonably were identifiable
as marshals was not clearly erroneous.
5
The petitioner argues that because Valentino testified during the petition-
er’s criminal trial that he hid behind a red vehicle as the petitioner fired on
him and Quinn, and Jones testified at the habeas trial that he saw a marshal
pointing a gun while hiding behind a red vehicle, the marshal pointing the
gun could only have been Valentino. At the criminal trial, Valentino testified
that he initially ran toward the red vehicle and then ended up hiding behind
a silver van.
6
Jones provided the following relevant testimony at the petitioner’s crimi-
nal trial. Jones saw an injured ‘‘male dressed civilian’’ near a tree and there
were other people who appeared to be civilians with the individual, whom
he could not recognize. Additionally, Jones did not see any state marshals
while he was at the location of the incident.
7
During the habeas proceeding, Jones testified to the accuracy of a police
report, which stated that Jones personally observed a state marshal taking
cover behind a red vehicle with a gun drawn and pointed at the 434 Indian
Avenue residence. Jones testified that he did not know which marshal had
the gun and that he could not recall anything about the person who had
the gun. Upon inquiry about his prior statement at the criminal trial that
everybody appeared to be civilians, Jones stated that, ‘‘under that level of
stress, we can’t distinguish between a civilian and a plainclothes state
marshal.’’
8
Hernandez swore to the accuracy of a supplemental report stating that
he saw one of the marshals with a gun. Hernandez testified that he was
unable to identify which marshal had the gun and that he could not recall
whether he was able to identify the people who were outside as marshals
or whether he was able to identify anybody as marshals.
9
General Statutes § 53a-23 provides in relevant part: ‘‘A person is not
justified in using physical force to resist an arrest by a reasonably identifiable
peace officer [or] special policeman appointed under section 29-18b . . .
whether such arrest is legal or illegal.’’