Lebron v. Commissioner of Correction

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LUIS LEBRON v. COMMISSIONER
OF CORRECTION
(AC 43579)
Bright, C. J., and Alvord and Prescott, Js.
Syllabus
The petitioner, who previously had been convicted, on a guilty plea, of the
crimes of manslaughter in the first degree with a firearm and conspiracy
to commit witness tampering, filed his third petition for a writ of habeas
corpus, claiming, inter alia, that he had received ineffective assistance
from D, his first habeas counsel. At the petitioner’s criminal trial, the
trial court permitted his defense counsel, S, to withdraw on the ground
that he could be called as a witness at trial. The petitioner indicated to
the court that he waived any conflict, and wanted to proceed to trial
and was prepared to represent himself, which the court did not allow.
The petitioner thereafter was charged with additional crimes in a sepa-
rate docket, and C was appointed to represent him on all of the charges,
after which the petitioner entered his plea. In the first habeas action,
the petitioner alleged that S and C had rendered ineffective assistance.
The habeas court denied the petition, and D failed to file a timely petition
for certification to appeal. In the second habeas action, in which the
petitioner alleged that S, C and D had provided ineffective assistance,
the habeas court rendered judgment restoring the petitioner’s appellate
rights with respect to the issues raised in the first habeas petition. The
petitioner thereafter appealed from the denial of his first habeas petition,
but did not raise the merits of his claims in that first petition against S
and C. This court affirmed the judgment of the first habeas court. The
petitioner then filed his third habeas petition, and the habeas court
rendered a judgment of dismissal, concluding that there was no good
cause to proceed to trial. This court reversed in part the judgment of
the habeas court and remanded the case for a trial on the merits of the
petitioner’s claim that his right to the effective assistance of habeas
counsel had been violated. The petitioner claimed that D failed to pursue
a claim that his right to the effective assistance of criminal trial counsel
had been violated when C failed to advise him properly that his plea
would operate as a waiver of his appellate rights, specifically, his right
to challenge the trial court’s granting of S’s motion to withdraw. After
a trial on the merits, the habeas court rendered judgment denying the
petitioner’s claim on the ground that he had failed to prove prejudice
because he failed to establish that he would not have pleaded guilty
but for counsel’s alleged deficient performance. Thereafter, the habeas
court granted the petition for certification to appeal, and the petitioner
appealed to this court. Held that the habeas court properly denied the
petitioner’s ineffective assistance of habeas counsel claim because he
failed to establish that he was prejudiced by the alleged deficient perfor-
mance of C; the petitioner faced a possible sentence of 140 years of
incarceration with no possibility of parole if convicted at trial, and C was
able to negotiate a reduction in the charges and a state recommended
sentence of thirty years of incarceration with the possibility of parole
in exchange for the petitioner’s plea, and the record supported the
court’s finding that the petitioner would not have declined that plea
offer on the chance that he could convince a jury on a retrial, after he
was convicted once and successfully appealed on the grounds he claimed
he would have pursued if he had been counseled properly by C, that
he was not guilty, as the state’s case against the petitioner was strong,
the petitioner’s claim of self-defense had significant weaknesses, and
the court was free to discredit the petitioner’s testimony that he would
have gone to trial had he been counseled by C that his issues regarding
S’s withdrawal and his right to self-representation could have been raised
on appeal had he been convicted.
Argued February 4—officially released April 20, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland where the court Sferrazza, J., rendered judg-
ment dismissing the petition, from which the petitioner,
on the granting of certification, appealed to this court,
Keller, Prescott and Kahn, Js., which reversed in part
the judgment of the habeas court and remanded the
case for a trial on the merits; subsequently, the matter
was tried to the court before Bhatt, J.; judgment deny-
ing the petition, from which the petitioner, on the grant-
ing of certification, appealed to this court. Affirmed.
Vishal K. Garg, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Leah Hawley, former senior assistant
state’s attorney, for the appellee (respondent).
Opinion
BRIGHT, C. J. The petitioner, Luis Lebron, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The habeas court
granted his petition for certification to appeal. On
appeal, the petitioner claims that the habeas court
improperly rejected his claim that his right to the effec-
tive assistance of counsel was violated when his first
habeas counsel, Attorney Sebastian DeSantis, failed to
pursue a claim that the petitioner’s criminal trial coun-
sel, Attorney Thomas Conroy, had provided ineffective
assistance when he failed to advise the petitioner that
he would be waiving his appellate rights by pleading
guilty. We affirm the judgment of the habeas court.
The following facts and somewhat complicated pro-
cedural history inform our review. The state, in 1997,
originally charged the petitioner with murder in viola-
tion of General Statutes § 53a-54a (a) and criminal use
of a firearm in violation of General Statutes § 53a-216
after he shot and killed another man. The petitioner
claimed that he shot the victim in self-defense. Attorney
Kenneth Simon represented the petitioner in connec-
tion with these charges. During jury selection, in Janu-
ary, 1999, it became apparent to Simon that the peti-
tioner would be charged with conspiracy to commit
additional crimes relating to two witnesses to the shoot-
ing, namely, two counts of conspiracy to commit wit-
ness tampering and two counts of conspiracy to commit
murder. Simon then filed a motion to withdraw from
representing the petitioner, stating that he believed that
he likely would be called as a witness during the trial
on the anticipated new charges. The petitioner opposed
Simon’s motion and argued, in the alternative, that he
should be able to represent himself temporarily, until
a special public defender could be appointed. On Janu-
ary 27, 1999, the court denied the petitioner’s request
to represent himself temporarily, granted Simon’s
motion to withdraw, and declared a mistrial. In a sepa-
rate information, the state additionally charged the peti-
tioner with two counts of conspiracy to commit murder
in violation of General Statutes §§ 53a-48 and 53a-54a,
and two counts of conspiracy to commit witness tam-
pering in violation of General Statutes §§ 53a-48 and
53a-151. Attorney Conroy later was appointed to repre-
sent the petitioner on all of the charges
Conroy negotiated a plea agreement with the state
that resolved all charges against the petitioner, pursuant
to which the petitioner pleaded guilty under the Alford
doctrine1 to one count of manslaughter in the first
degree with a firearm in violation of General Statutes
§ 53a-55a and one count of conspiracy to commit wit-
ness tampering. The court sentenced the petitioner to
a term of thirty years of incarceration on the manslaugh-
ter charge and to an unconditional discharge on the
conspiracy charge. The state entered a nolle prosequi
as to all of the other charges.
In June, 2000, the petitioner filed his first petition for
a writ of habeas corpus. The petitioner’s first habeas
counsel, Attorney DeSantis, filed an amended petition,
in which the petitioner alleged ineffective assistance
of counsel as to Simon and Conroy. Specifically, the
amended petition contained allegations that counsel
had rendered ineffective assistance by failing to pursue
discovery and to communicate with the petitioner about
discovery, by failing to challenge the petitioner’s arrest
and the circumstances surrounding his arrest, by failing
to challenge the arrest warrant, and by failing to com-
municate with the petitioner regarding legal and eviden-
tiary standards so that he could make an informed deci-
sion on whether to plead guilty or to proceed to trial. On
February 20, 2003, the habeas court denied the amended
habeas petition (first habeas court’s decision). DeSantis
did not file a timely petition for certification to appeal
from the first habeas court’s decision. The petitioner,
however, filed a pro se petition for certification to
appeal on February 26, 2003, which was denied. No
appeal from that denial was timely taken.
On July 18, 2006, the petitioner, represented by Attor-
ney Paul Kraus, filed a second petition for a writ of
habeas corpus, alleging the ineffective assistance of
counsel as to Simon, Conroy, and DeSantis. The habeas
court and the petitioner entered a stipulated agreement
to restore the petitioner’s appellate rights in the first
habeas case (second habeas case). The court also
granted a petition for certification to appeal from the
first habeas court’s decision. On September 8, 2006, the
petitioner filed an appeal from the first habeas court’s
decision limited only to whether the first habeas court
improperly had denied his postjudgment motions for
reconsideration and reargument. This court denied
review of those claims because they fell outside the
scope of the stipulated agreement in the second habeas
case, and our Supreme Court denied the petition for
certification to appeal from our decision. See Lebron
v. Commissioner of Correction, 108 Conn. App. 245,
249, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d
151 (2008).
Nearly ten years later, on January 8, 2016, the peti-
tioner filed a six count amended petition for a writ of
habeas corpus, his third such petition. On May 5, 2016,
the habeas court rendered a judgment of dismissal on
the amended petition, concluding that there was no
good cause to proceed to trial. The habeas court granted
the petition for certification to appeal on May 18, 2016.
On appeal, this court reversed in part the judgment of
the habeas court and remanded the case for, inter alia,
a trial on the merits of the petitioner’s claim that his
right to the effective assistance of habeas counsel had
been violated because DeSantis had failed to pursue a
claim that the petitioner’s right to the effective assis-
tance of criminal trial counsel had been violated when
Conroy failed to advise the petitioner properly that his
Alford plea would operate as a waiver of his appellate
rights, specifically, his right to challenge the criminal
trial court’s granting of Simon’s motion to withdraw.
See Lebron v. Commissioner of Correction, 178 Conn.
App. 299, 319–24, 175 A.3d 46 (2017), cert. denied, 328
Conn. 913, 179 A.3d 779 (2018).
The habeas court proceeded to a hearing on the mer-
its of the petitioner’s remaining claim. On August 28,
2019, the habeas court issued a memorandum of deci-
sion denying the petition on the ground that the peti-
tioner had failed to prove prejudice because he failed
to establish that he would not have pleaded guilty but
for counsel’s alleged deficient performance. The court,
thereafter, granted the petitioner’s petition for certifica-
tion to appeal. This appeal followed.
On appeal, the petitioner claims that the habeas court
improperly rejected his claim that his right to the effec-
tive assistance of counsel was violated when his first
habeas counsel, DeSantis, failed to pursue a claim that
the petitioner’s criminal trial counsel, Conroy, had
failed to advise him that, by pleading guilty, he would
be waiving his rights to challenge on appeal the decision
of the criminal trial court allowing Simon to withdraw
and denying the petitioner’s alternative request to repre-
sent himself. He alleges that the actions of the criminal
trial court violated his constitutional rights to his coun-
sel of choice and to self-representation. The respondent,
the Commissioner of Correction, maintains that the
petitioner failed to meet the prejudice prong of his
ineffective assistance of counsel claim, and, therefore,
the habeas court properly rejected the claim. We agree
with the respondent.
We now turn to the merits of the petitioner’s claim,
recognizing that the claimed ineffective assistance
regarding his first habeas counsel, DeSantis, must fail
if the claims of ineffective assistance of his replacement
trial counsel, Conroy, are without merit. See Lozada v.
Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992).
In Lozada, our Supreme Court ‘‘established that
habeas corpus is an appropriate remedy for the ineffec-
tive assistance of appointed habeas counsel, authoriz-
ing what is commonly known as a habeas on a habeas,
namely, a second petition for a writ of habeas corpus
. . . challenging the performance of counsel in litigat-
ing an initial petition for a writ of habeas corpus . . .
[that] had claimed ineffective assistance of counsel at
the petitioner’s underlying criminal trial or on direct
appeal. . . . Nevertheless, the court in Lozada also
emphasized that a petitioner asserting a habeas on a
habeas faces the herculean task . . . of proving in
accordance with Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both
(1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective. . . . Any
new habeas trial would go to the heart of the underlying
conviction to no lesser extent than if it were a challenge
predicated on ineffective assistance of trial or appellate
counsel. The second habeas petition is inextricably
interwoven with the merits of the original judgment by
challenging the very fabric of the conviction that led to
the confinement.’’ (Citations omitted; internal quotation
marks omitted.) Lebron v. Commissioner of Correc-
tion, supra, 178 Conn. App. 319–20.
‘‘A claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. . . . For ineffectiveness claims resulting
from guilty pleas, we apply the standard set forth in
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985) . . . . To satisfy the performance
prong, the petitioner must show that counsel’s repre-
sentation fell below an objective standard of reason-
ableness. . . . To satisfy the prejudice prong, the peti-
tioner 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.’’ (Citations omit-
ted; footnotes omitted; internal quotation marks omit-
ted.) Bigelow v. Commissioner of Correction, 175
Conn. App. 206, 212–14, 167 A.3d 1054, cert. denied,
327 Conn. 929, 171 A.3d 455 (2017).
‘‘The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . [T]his court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Godfrey v. Commissioner of Correction, 202 Conn.
App. 684, 693, A.3d (2021).
In evaluating the prejudice prong and the credibility
of the petitioner’s assertion that he would have insisted
on going to trial but for Conroy’s deficient performance,
it is appropriate for the habeas court to consider
whether a decision to reject a plea offer, under the
circumstances presented, would have been rational. See
Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473,
176 L. Ed. 2d 284 (2010). ‘‘Additionally, a petitioner’s
assertion after he has accepted a plea that he would
have insisted on going to trial suffers from obvious
credibility problems . . . . In evaluating the credibility
of such an assertion, the strength of the state’s case is
often the best evidence of whether a defendant in fact
would have changed his plea and insisted on going to
trial . . . . Likewise, the credibility of the petitioner’s
after the fact insistence that he would have gone to
trial should be assessed in light of the likely risks that
pursuing that course would have entailed.’’ (Internal
quotation marks omitted.) Colon v. Commissioner of
Correction, 179 Conn. App. 30, 36–37, 177 A.3d 1162(2017), cert. denied, 328 Conn. 907, 178 A.3d 390 (2018).
In the present case, the petitioner argues that his
underlying claims regarding the alleged violations of
his rights to self-representation and to counsel of choice
had considerable merit. The petitioner asserts that if
Conroy had informed him of the merits of his constitu-
tional claims and explained that, by pleading guilty, he
would be giving up his right to assert those claims on
appeal, he would not have entered an Alford plea but,
instead, would have proceeded to trial. In its memoran-
dum of decision, the habeas court concluded that the
petitioner failed to demonstrate prejudice because he
did not establish that, even if it assumed that the peti-
tioner had been counseled by Conroy that his claims
had merit and that, following a conviction, the peti-
tioner could raise those claims in an appeal and, if
successful on appeal, would be entitled to a retrial on
the charges, the petitioner would not have accepted the
plea offer but, instead, would have elected to proceed
to trial.
In particular, the court credited the testimony of
Simon and Conroy that the petitioner’s self-defense
claim had significant weaknesses and that there was a
strong likelihood that the petitioner would be convicted
of murder, or at least manslaughter in the first degree,
on the original charges. In addition, the petitioner faced
another eighty years of exposure arising out of the
additional charges of conspiracy to commit murder and
conspiracy to tamper with witnesses. The court also
noted that the petitioner’s potential constitutional
claims for appeal relating to Simon’s withdrawal and
to the petitioner’s right of self-representation, at best,
would have resulted only in another trial on the same
charges with the same evidence available to the prose-
cution. On the basis of these underlying facts, the court
clearly did not credit the petitioner’s testimony that he
would not have pleaded guilty had he been advised
properly by Conroy. Specifically, the court stated that
it ‘‘fail[ed] to see how the petitioner would want to risk
exposing himself to a significantly longer sentence at
a trial when the basis for a new trial would do nothing
to make it more likely that he would be acquitted at
the first or second trial. Put another way, pursuing the
two claims he wished to [pursue] would only result in
a second trial at which the state’s evidence would be
the same as that at the first. In light of that, it is not
reasonable to conclude that the petitioner would have
rejected the favorable offer and proceeded to trial.’’ We
conclude that the court’s finding that the petitioner
failed to establish that but for Conroy’s alleged deficient
performance, he would not have pleaded guilty but
would have gone to trial was not clearly erroneous.
The petitioner faced a total possible sentence of 140
years of incarceration, with no possibility of parole
if convicted at trial. Conroy was able to negotiate a
reduction in the charges and a state recommended sen-
tence of thirty years, with a right for the petitioner to
argue for a lesser sentence, in exchange for the peti-
tioner entering an Alford plea. At sentencing, Conroy
argued for an unconditional discharge on the conspir-
acy charge, which the court granted and thereafter sen-
tenced the petitioner to thirty years to serve on the
manslaughter charge; the state nolled the remaining
charges.
In addition, Conroy testified that he believed the state
had a strong case against the petitioner and that he had
urged the petitioner to take the plea bargain to avoid
the risk of a murder conviction. In its memorandum
of decision, the habeas court also discussed Conroy’s
testimony during the petitioner’s first habeas trial that
one of the benefits of the petitioner’s plea of guilty to
the manslaughter charge was that he would be eligible
for parole, but if he had been convicted of the murder
charge, he would have been ineligible for parole.
The record further demonstrates that the state’s case
against the petitioner was strong. In the petitioner’s
own statement to the police, he admitted that he drew
his firearm first and pointed it at the victim. A witness
identified the petitioner as the shooter, and the charges
against the petitioner for conspiracy to commit murder
were related to the petitioner’s attempt to prevent that
witness and another person from testifying at his crimi-
nal trial.
During the habeas trial, although the petitioner testi-
fied that he believed he had a strong case, and he wanted
to continue to trial after Simon withdrew because he
‘‘felt that . . . the case would go in [his] favor,’’ he
also testified that Conroy told him that the state’s case
against him was ‘‘voluminous.’’ Further, although the
petitioner testified that he would have gone to trial if he
had known that his issues regarding Simon’s withdrawal
and his right to self-representation could be raised on
appeal if he were convicted, the court was free to dis-
credit this testimony.
The record clearly supports the court’s finding that
the petitioner would not have declined a plea offer
of thirty years of incarceration, with the possibility of
parole, on a roll of the dice that he could convince
a jury on a retrial, after he was convicted once and
successfully appealed from that conviction, that he was
not guilty. A reversal of the judgment of conviction by
this court on the grounds that the petitioner claims he
would have raised on appeal, if successful, would not
have resulted in an acquittal, but would have resulted in
a retrial with the same evidence and with the petitioner
again facing a possible sentence of 140 years in prison
with no possibility of parole on the murder and conspir-
acy to commit murder charges. We conclude that the
habeas court’s finding that the petitioner failed to estab-
lish that there was a reasonable probability that he
would not have pleaded guilty but for Conroy’s alleged
deficient performance was not clearly erroneous.
Accordingly, we conclude, as a matter of law, that the
habeas court properly determined that the petitioner
failed to satisfy the prejudice prong of Strickland.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘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.’’ (Internal quotation marks omitted.)
State v. Walker, 187 Conn. App. 776, 778 n.2, 204 A.3d 38, cert. denied, 331
Conn. 914, 204 A.3d 703 (2019).