Diaz v. Commissioner of Correction

 LUIS DIAZ v. COMMISSIONER OF CORRECTION
(AC 39134)
Lavine, Keller and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of murder and firearm offenses in
connection with a shooting incident in Bridgeport, sought a writ of
habeas corpus, claiming, inter alia, that the habeas court abused its
discretion in denying his petition for certification to appeal because his
right to due process and a fair trial were violated by the prosecutor’s
failure to disclose material evidence that was favorable to the defense
as required by Brady v. Maryland (373 U.S. 83). During the petitioner’s
criminal trial, several witnesses, including O, gave testimony implicating
the petitioner in the shooting. Specifically, O, who was incarcerated at
the time of the petitioner’s trial, testified that he had observed the
petitioner shoot the victim. The habeas court rendered judgment denying
the petition. Thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The petitioner failed to demonstrate that the habeas court abused its
discretion in denying the petition for certification to appeal with respect
to the petitioner’s claim that his right to due process and a fair trial
were violated by the prosecutor’s failure to disclose material evidence
that was favorable to the defense, namely, that an express or implied
agreement existed between the state and O, in exchange for O’s testi-
mony at the petitioner’s criminal trial; the petitioner’s claim to the
contrary notwithstanding, the habeas court focused on the claim as
framed by the petitioner’s amended petition, and did not limit its analysis
to the existence of a written or formal agreement between the state
and O, or the existence of a plea agreement, as the court referred
to the lack of any ‘‘undisclosed understandings’’ or ‘‘clandestine plea
arrangements,’’ and the fact that ‘‘no deals were struck’’ between the
state and O, and the circumstantial evidence, including the fact that,
several months after O testified for the state at the petitioner’s criminal
trial, the state agreed that O’s sentence modification agreement should
be considered by the sentencing court, did not compel a finding that,
prior to the petitioner’s criminal trial, the state and O had come to
an understanding that required disclosure under Brady, because the
testimony of both S, the senior assistant state’s attorney who prosecuted
the petitioner in his underlying criminal trial, and O was consistent in
their denial that, prior to the petitioner’s trial, any agreement had been
reached or that any quid pro quo existed other than that which was
disclosed to the jury at the petitioner’s criminal trial, namely, that O
hoped that the state would make O’s cooperation known in the future;
moreover, any evidence that S was motivated to acquiesce in O’s sen-
tence modification application following the petitioner’s trial did not
implicate a duty to disclose under Brady at the time of trial; furthermore,
this court did not consider the petitioner’s alternative claims that the
state solicited O’s false testimony that no agreement had made with the
state and that the state failed to correct that false testimony because
those claims were not distinctly raised before the habeas court and the
court did not consider those claims in denying the petition for a writ
of habeas corpus.
2. The petitioner failed to demonstrate that the habeas court abused its
discretion in denying the petition for certification to appeal with respect
to the petitioner’s claim that counsel in the prior habeas proceeding
rendered ineffective assistance because they failed to identify, under-
stand, research, raise, or argue the Brady claim concerning O: even if
the petitioner could demonstrate that counsel performed deficiently
with respect to the Brady claim concerning O, the habeas court properly
determined that the petitioner was unable to demonstrate that he was
prejudiced by counsel’s performance because no Brady violation
occurred.
Argued March 7—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
James E. Mortimer, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, was John Smriga, state’s attorney,
and Craig Nowak, senior assistant state’s attorney, for
the appellee (respondent).
Opinion
KELLER, J. The petitioner, Luis Diaz, appeals follow-
ing 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. First, the
petitioner claims that the court abused its discretion
in denying his petition for certification to appeal
because his right to due process and a fair trial were
violated by the prosecutor’s failure to disclose material
evidence that was favorable to the defense, namely,
that an express or implied agreement existed between
the state and one of the state’s witnesses, Eddie Ortiz,
in exchange for Ortiz’ testimony at the petitioner’s crim-
inal trial. In connection with this claim, the petitioner
also claims that the state failed to correct false testi-
mony provided by Ortiz concerning the existence of
such an agreement. Second, the petitioner claims that
his right to the effective assistance of counsel was vio-
lated by virtue of representation afforded to him by
counsel in a prior habeas proceeding. The petitioner
claims that prior habeas counsel failed to adequately
pursue his claim that his right to due process was vio-
lated by the state’s failure to disclose an agreement
reached with Ortiz prior to the petitioner’s trial.
Because we conclude that the court’s denial of the
petition for certification to appeal reflected a proper
exercise of its discretion, we dismiss the appeal.
The following underlying facts and procedural history
are relevant to the present appeal. In 2007, following a
jury trial, the petitioner was convicted of murder in
violation of General Statutes § 53a-54a, carrying a pistol
without a permit in violation of General Statutes § 29-
35, and criminal possession of a pistol in violation of
General Statutes § 53a-217c. The petitioner was sen-
tenced to a total effective term of incarceration of sev-
enty years. Following the petitioner’s direct appeal to
our Supreme Court pursuant to General Statutes § 51-
199 (b) (3), that court affirmed the judgment of convic-
tion. State v. Diaz, 302 Conn. 93, 25 A.3d 594 (2011).
Our Supreme Court set forth the following facts
underlying the petitioner’s conviction: ‘‘On the evening
of January 11, 2006, the victim, Philip Tate, was shot
and killed outside a bar known as the Side Effect West
in the city of Bridgeport. Thereafter, the [petitioner]
was arrested and charged with murdering the victim,
carrying a pistol without a permit and criminal posses-
sion of a pistol or revolver.
‘‘In March, 2006, Corey McIntosh gave a statement
to the police indicating that the [petitioner] had been
the shooter. At that time, McIntosh was on federal pro-
bation and had received a three year suspended sen-
tence for possessing narcotics in Connecticut. McIntosh
testified at the [petitioner’s] trial that he had seen the
[petitioner] outside the Side Effect West immediately
before the shooting and had heard shots as he entered
the bar. He then ran out the back door and saw the
[petitioner] running down the street with a gun in his
hand. Additional state narcotics charges were pending
against McIntosh at the time of trial. He testified that,
while no promises had been made in connection with
the pending charges, he was hoping to receive some
consideration in exchange for his testimony.
‘‘At some point after July, 2006, Eddie Ortiz wrote a
letter to the prosecutor’s office indicating that he had
information about the murder. He was incarcerated at
the time and stated in his letter that he was looking for
some consideration in exchange for his testimony. Ortiz
testified at the [petitioner’s] trial that he had seen the
[petitioner] shoot the victim. He also testified that, dur-
ing the trial, he had been placed in the same holding
cell as the [petitioner], who said to him, ‘You know
what I did’ and ‘I know where you live at.’ In addition,
Ortiz testified that the [petitioner] had offered him
$5000 not to testify. He further testified that the prosecu-
tor’s office had not promised him anything in exchange
for his testimony and that he had been told that it would
be up to a judge whether he would receive any benefit,
such as a sentence modification. He had expectations,
however, that his testimony would be taken into consid-
eration.
‘‘Approximately six months after the murder, James
Jefferson asked his attorney to inform Harold Dimbo,
a detective with the Bridgeport [P]olice [D]epartment,
that Jefferson had information about the murder. Jeffer-
son, who was incarcerated in Connecticut on domestic
violence charges at the time, was subject to lifetime
parole in New York in connection with a conviction on
narcotics charges in that state. Dimbo visited Jefferson
in prison and Jefferson agreed to give a statement about
the shooting. Dimbo made no promises to Jefferson. In
September, 2006, the domestic violence charges were
dismissed for lack of evidence. Thereafter, Jefferson
testified at the [petitioner’s] trial that he had seen the
[petitioner] and the victim outside Side Effect West
immediately before the shooting. He also saw the [peti-
tioner] shoot at someone, but he did not see the victim
at that point. At the time of trial, Jefferson was incarcer-
ated in Connecticut for violating his parole in New York.
‘‘McIntosh, Ortiz and Jefferson were the only wit-
nesses who identified or implicated the [petitioner] as
the shooter. The [petitioner’s] girlfriend, Shenisha
McPhearson, testified that the [petitioner] had been
with her at her apartment at the time of the shooting.
The state presented no physical evidence to tie the
[petitioner] to the shooting and the gun used in the
shooting was never recovered.’’ (Footnote omitted.)
Id., 95–97.
In a prior habeas corpus proceeding, in which the
petitioner was represented by Attorneys William T.
Koch, Jr., and W. Theodore Koch III, the habeas court
denied the petitioner relief on May 16, 2012. After the
habeas court denied the petitioner’s petition for certifi-
cation to appeal from that judgment, the petitioner
appealed to this court, which dismissed the appeal.
Diaz v. Commissioner of Correction, 152 Conn. App.
669, 100 A.3d 856, cert. denied, 314 Conn. 937, 102 A.3d
1114 (2014).
In the present action, on June 7, 2013, the petitioner
filed a petition for a writ of habeas corpus. On February
9, 2015, the petitioner filed a three count amended peti-
tion. In count one, he alleged that prior habeas counsel
rendered ineffective assistance in ten different ways.
In count two, the petitioner alleged that his right to due
process was violated because the prosecutor failed to
disclose evidence that was favorable to the defense
‘‘with respect to an express or implied agreement’’ with
state’s witnesses Ortiz, McIntosh, and Jefferson. In
count three, the petitioner, referring to evidence that
he alleged to have discovered following his conviction,
claimed that he was actually innocent of the charges
underlying his conviction and incarceration. During the
trial, the petitioner withdrew the third count of the
petition.
In his return, the respondent, the Commissioner of
Correction, denied the substantive allegations set forth
in each count of the petition. By way of special defenses,
the respondent alleged that the claims set forth in count
two were barred by the doctrines of successive petition
and abuse of the writ because the claims either were
previously litigated in the prior habeas proceeding or
the petitioner had a full and fair opportunity to litigate
such claims in that prior proceeding. Alternatively, the
respondent alleged that the claims set forth in count
two were barred by the doctrine of procedural default
because the petitioner failed to raise such claims in the
prior habeas proceeding. In reply, the petitioner denied
the respondent’s special defenses.
A trial before the habeas court took place on August
18, 2015, and October 22, 2015. In addition to receiving
evidence that was nontestimonial in nature, the court
heard testimony from Donald Collimore, an assistant
state’s attorney who prosecuted charges against McIn-
tosh, beginning in 2006; Brian Kennedy, an assistant
state’s attorney who, at Collimore’s direction, entered a
nolle prosequi in McIntosh’s prosecution; W. Theodore
Koch III, who represented the petitioner in his prior
habeas appeal; Howard Stein, a senior assistant state’s
attorney who prosecuted the petitioner in the criminal
case underlying the present action; Ortiz; and Jefferson.
Later, the petitioner and the respondent submitted post-
trial briefs to the court.
In its memorandum of decision denying the amended
petition, the court stated: ‘‘In the present action, the
petitioner alleges, in the first count, that his previous
habeas counsel . . . rendered ineffective assistance
and, in the second count, that his due process rights
as enunciated in Brady v. Maryland, [373 U.S. 83, 87,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], were breached.’’
First, the court addressed the merits of the petition-
er’s Brady claim. In relevant part, the court stated: ‘‘The
petitioner asserts that three prosecution witnesses, viz.
. . . Ortiz . . . McIntosh, and . . . Jefferson, were
offered secret plea dispositions regarding their own
criminal files in exchange for their testimony against
the petitioner at his criminal trial in 2007. During the
present habeas hearing . . . Collimore . . . Kennedy
. . . Stein . . . Ortiz . . . and . . . Jefferson . . .
all testified that no such undisclosed understandings
existed at the time their cases and the petitioner’s crimi-
nal case were pending. [Koch] . . . also testified that
he discovered no evidence supporting such clandestine
plea arrangements when he represented the petitioner
in his previous habeas case. No credible evidence was
adduced during the present hearing to support these
assertions of Brady violations nor attacking the credi-
bility of the above listed witness’ testimony to the
contrary.
‘‘Although certain favorable plea negotiations
occurred with respect to Ortiz, McIntosh, and Jefferson
sometime after the petitioner’s criminal trial concluded,
the court finds that no deals were struck between any
of these witnesses and the prosecution in exchange
for their testimony [at the petitioner’s criminal trial].
Indeed, because Jefferson and McIntosh had given writ-
ten statements to the police implicating the petitioner as
the shooter shortly after the homicide, the prosecutor
handling the petitioner’s case had no pressing need
to proffer promises to these witnesses because of the
holding of State v. Whelan, 200 Conn. 743, 753 [513 A.2d
86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed.
2d 598] (1986).
‘‘Therefore, the court determines that the petitioner
has failed to prove the factual underpinnings of his
Brady violation claim, and the court denies the
amended petition as to the second count.’’ (Emphasis
in original.)
Discussing the merits of the first count of the petition,
alleging ineffective assistance of prior habeas counsel,
the court began its analysis by setting forth relevant
principles of law. The court observed that the petitioner
had ‘‘a herculean task’’ of demonstrating that he was
prejudiced by the deficient performance of prior habeas
counsel and trial counsel. (Internal quotation marks
omitted.) Then, the court stated: ‘‘[T]he petitioner avers
that his previous habeas counsel were professionally
deficient by failing to discover and present evidence,
in a variety of forms, as to the existence of implied plea
agreements between the state and Ortiz, McIntosh, and
Jefferson; by misadvising the petitioner with respect to
the availability of sentence review; by failing to assert
an ineffective assistance claim against appellate coun-
sel . . . for her failure to lay a proper foundation for
a Brady violation argument through rectification of the
trial records; and by failing to present expert witnesses
regarding the purported insufficiencies of trial and
appellate counsel. . . .
‘‘This court’s factual findings that no Brady violation
occurred, as elucidated above, also requires the court to
deny habeas relief with respect to ineffective assistance
premised on the existence of such violations. . . .
‘‘Per stipulation between the litigants, the petitioner’s
opportunity for sentence review was restored. There-
fore, this claim of ineffective assistance has been dealt
with previously. . . .
‘‘The final specification against habeas counsel is that
they failed to engage legal experts to evaluate and testify
as to the deficient performance of trial and/or appellate
counsel. However, in this present habeas case, the peti-
tioner also presented no such expert witnesses with
respect to trial counsel, appellate counsel, or previous
habeas counsel. Consequently, this averment lacks any
factual foundation whatsoever. [This] court would be
left to speculate as to whether such expert testimony
would have been available [to prior trial, appellate, and
habeas counsel], and as to the substance of such sup-
posed testimony. It is incumbent upon the petitioner
to establish the ways in which defense counsel’s failure
to present a witness negatively affected the pertinent
proceeding . . . . Therefore, this allegation of ineffec-
tive assistance fails.’’ (Citation omitted; emphasis in
original.) Subsequent to its denial of the petition for a
writ of habeas corpus,1 the court denied a petition for
certification to appeal filed by the petitioner.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . In
determining whether the habeas court abused its discre-
tion in denying the petitioner’s request for certification,
we necessarily must consider the merits of the petition-
er’s underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous.’’ (Citation omitted; internal quota-
tion marks omitted.) James v. Commissioner of Correc-
tion, 170 Conn. App. 800, 807–808, 156 A.3d 89 (2017).
In evaluating the merits of the underlying claims on
which the petitioner relies in the present appeal, we
observe that ‘‘[when] the legal conclusions of the court
are challenged, [the reviewing court] must determine
whether they are legally and logically correct . . . and
whether they find support in the facts that appear in
the record. . . . To the extent that factual findings are
challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . . [A] finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.)
Brewer v. Commissioner of Correction, 162 Conn. App.
8, 13, 130 A.3d 882 (2015).
I
First, the petitioner claims that the court abused its
discretion in denying his petition for certification to
appeal because his right to due process and a fair trial
were violated by the prosecutor’s failure to disclose
material evidence that was favorable to the defense,
namely, that an express or implied agreement existed
between the state and Ortiz in exchange for Ortiz’ testi-
mony at the petitioner’s criminal trial. In connection
with this claim, the petitioner also claims that the state
failed to correct false testimony provided by Ortiz con-
cerning the existence of such an agreement. We dis-
agree that the court abused its discretion in denying
the petition for certification to appeal on this ground.
As stated previously in this opinion, the petitioner
alleged that, at his criminal trial, the state violated
Brady in that it ‘‘failed to disclose material favorable
evidence to the petitioner with respect to an express
or implied agreement with the state’s witness . . .
Ortiz.’’ In support of this aspect of his claim, the peti-
tioner alleged the following specific facts: (1) ‘‘[o]n July
12, 2006 . . . Ortiz was convicted of robbery in the
first degree and sentenced to eight years [of] incarcera-
tion’’; (2) ‘‘[a]t the petitioner’s criminal trial . . . Ortiz
testified that he witnessed the petitioner murder . . .
Tate and that the petitioner had attempted to bribe him
not to testify’’; (3) ‘‘[a]fter testifying at the petitioner’s
criminal trial . . . Ortiz’ sentence was modified to
three years’’; (4) ‘‘Ortiz testified at the petitioner’s crimi-
nal trial that he was promised no consideration. Fur-
thermore . . . Stein stated in the state’s closing
argument that . . . Ortiz was told that he would get
no benefit in exchange for his testimony’’; and (5)
‘‘[w]hen . . . Ortiz testified at the petitioner’s criminal
trial, an undisclosed express or implied agreement that
the state would concur with his sentence modification
application in exchange for his favorable testimony
existed, in violation of the petitioner’s constitutional
rights.’’
As detailed previously in this opinion, the court
rejected the petitioner’s assertion that any ‘‘clandestine
plea arrangement’’ or ‘‘undisclosed understandings’’
existed between the state and the witnesses at issue in
the petition, including Ortiz, at the time that the cases
of the petitioner and Ortiz were pending. The court
found that ‘‘[n]o credible evidence was adduced during
the present hearing to support . . . assertions of
Brady violations . . . .’’ The court found that ‘‘no deals
were struck’’ between the witnesses at issue, including
Ortiz, and the prosecution in exchange for their tes-
timony.
The petitioner argues that ‘‘the habeas court entirely
misunderstood the nature of the petitioner’s claim con-
cerning Ortiz. . . . The petitioner did not assert that
Ortiz was offered secret plea dispositions regarding
[Ortiz’] own criminal file in exchange for [his] testimony
. . . . Rather, the gravamen of the petitioner’s com-
plaint, as advanced through his pleadings, his pretrial
brief, through the questioning of witnesses, his posttrial
brief, and now on appeal, is that the prosecuting author-
ity explicitly or implicitly promised Ortiz consideration,
in the form of a promise of acquiescence to a sentence
modification application, prior to his testimony. Fur-
ther, the petitioner argued that the prosecuting author-
ity’s advancement of Ortiz’ testimony concerning the
same was false and misleading and stood uncorrected.’’
(Citations omitted; internal quotation marks omitted.)
The petitioner argues that the evidence presented at
the habeas trial ‘‘demonstrated [that] the state extended
a pretestimonial offer of consideration to Ortiz for a
more favorable outcome in his criminal case in
exchange for his testimony at the petitioner’s criminal
trial. The agreement the petitioner finds fault with arose
by virtue of the state’s implied promise of acquiescence
to Ortiz’ sentence modification application.’’ (Empha-
sis in original.)
The petitioner draws our attention to Ortiz’ testimony
during the habeas trial that when he wrote to the prose-
cutor’s office in 2006, after he received an eight year
sentence of incarceration for robbery in the first degree,
he hoped that by coming forward to testify against the
petitioner he could ‘‘get out early.’’2 Ortiz testified that,
when he met with Stein prior to testifying, a topic of
conversation was how his sentence could be changed,
and that he learned that the only person that could
change his sentence was a judge. Ortiz testified, how-
ever, that ‘‘there was nothing promised.’’ Ortiz testified
that Stein told him that he would be willing to make
his participation in the petitioner’s criminal trial known,
but that Stein did not specify to whom he would make
it known. Ortiz testified, as well, that, after he testified
against the petitioner, he contacted a public defender,
Attorney Joseph Bruckmann, for assistance because he
was ‘‘being threatened’’ in jail. He testified that, ulti-
mately, his sentence was reduced by five years.
The petitioner also draws our attention to Stein’s
testimony. Stein testified that when he met with Ortiz
initially, Ortiz requested consideration for his testi-
mony. Stein testified, however, that the state did not
offer Ortiz any consideration in exchange for his testi-
mony. Stein testified: ‘‘[Ortiz] was not a necessary wit-
ness and . . . I explained to him that there would be
no consideration. I did explain to him that if he did
testify, if he did the right thing, that if he felt that that
had value in the future somehow and he wanted me to
affirm that to somebody, whoever that might be, that
I would be happy to do that, to affirm the fact that
he testified, but that there was no consideration, no
accommodation to sentence, just that I would state the
affirmative, that he testified as a state’s witness in a
homicide case.’’ Stein acknowledged that ‘‘there are
many ways for a state’s attorney to acknowledge a
person’s cooperation,’’ and that these ways did not nec-
essarily relate to sentence modification. Stein testified
that ‘‘[s]entence modifications were not discussed,’’ but
he told Ortiz that he would be willing to make a formal
acknowledgement of Ortiz’ cooperation with the state
to any party, including a judge. Stein testified that, after
he spoke with Ortiz, he believed that he would be an
effective witness for the state.
In attempting to demonstrate the existence of an
agreement concerning Ortiz’ application for sentence
modification, the petitioner refers to Stein’s testimony
that, in fact, he was aware that Ortiz, who had been
sentenced to a term of incarceration of more than three
years, could not have such application considered by
the court without the approval of the state’s attorney.
See General Statutes § 53a-39 (b).3 Yet, Stein testified
that he did not represent to Ortiz that he would agree
to support a sentence review application if Ortiz sought
to pursue such a remedy. Stein testified that following
Ortiz’ testimony, on August 9, 2007, he ‘‘signed off’’ on
a sentence review application that was filed on Ortiz’
behalf. Stein testified that his decision regarding the
application was made only after he had learned that
Ortiz was being threatened in jail by the petitioner and
others on behalf of the petitioner, and that Ortiz had
sought the assistance of Bruckmann. Stein testified that
Bruckmann related that information to him and filed
the application on Ortiz’ behalf. Stein testified that,
subsequently, he received a letter from Ortiz, which
was admitted in evidence, in which Ortiz thanked him
for keeping his ‘‘promise.’’ Stein testified that it was
only after he learned from Bruckmann that Ortiz’ life
was in danger as a consequence of his testimony against
the petitioner that he indicated to Bruckmann that he
would concur in the sentence modification application
so that Ortiz could appear before the court. Stein testi-
fied that, in referring to a promise, Ortiz may have
been referring to what Stein told him during his initial
meeting with him, when he informed Ortiz that he would
acknowledge the fact that he had testified against the
petitioner on behalf of the state.4 Stein testified as to
his belief that Ortiz’ letter was not evidence that any
type of deal had been made with him to secure his tes-
timony.
The evidence was undisputed that Ortiz testified
against the petitioner in April of 2007. Transcripts from
the petitioner’s criminal trial, admitted in evidence,
reflect that, during his direct examination by Stein for
the state, Ortiz testified that the topic of sentence modi-
fication had not been discussed with him previously
and that ‘‘no promises’’ were made to him in exchange
for his testimony. With respect to Ortiz’ expectations,
the following relevant examination of Ortiz by Stein
transpired at the petitioner’s criminal trial:
‘‘Q. So basically you were told that . . . it’s expected
you would cooperate. And what, if anything, came from
it was up to a judge one day to decide if it had any value?
‘‘A. Yes, sir.
‘‘Q. And you were promised nothing?
‘‘A. Yes, sir.
‘‘Q. Certainly, do you have expectations or would you
hope that someone would take this into consideration?
‘‘A. Yes, sir.
‘‘Q. But other than that, you’re here with no promises
and no consideration?
‘‘A. Yes, sir.’’
Later, Stein inquired of Ortiz, as follows:
‘‘Q. As you sit here today, do you have any expecta-
tions that you will receive any favorable treatment for
your testimony here today?
‘‘A. Yes, sir.
‘‘Q. And with that, do you expect that there’s some
type of a preset thing that’s going to happen, or you’re
just hoping someone will take this into consideration?
‘‘A. Hoping someone will take it into consideration.
‘‘Q. But as you sit here now, you have absolutely no
promise or any deals that have been set in exchange
for your testimony?
‘‘A. Yes, sir.’’
Ortiz also testified with respect to his belief that the
state’s attorney was ‘‘not capable of promising [him]
anything’’ in relation to his previously imposed eight
year sentence. During cross-examination, Ortiz reiter-
ated that he had not been offered any consideration,
but stated that, in contacting the state’s attorney, he
was looking for some type of an accommodation with
respect to his sentence.
During closing arguments at the petitioner’s criminal
trial, defense counsel pointedly suggested that the evi-
dence demonstrated that Ortiz’ testimony was not credi-
ble, but was motivated by his desire to receive a lesser
sentence. Defense counsel referred to Ortiz as ‘‘the clas-
sic example of the savvy lifetime criminal,’’ and in rele-
vant part stated that the jury should ‘‘not . . . believe
that Ortiz was at the scene of the shooting that night
and that he is just providing us with what he thinks the
state would want to hear . . . to get some accommoda-
tion on his sentence . . . .’’ Stein referred to Ortiz’
testimony. Then, in an attempt to cast doubt on defense
counsel’s argument that Ortiz’ testimony was motivated
by self-interest, he argued in relevant part: ‘‘How cold
a person do you have to be to point an accusatory finger
and say I saw this man commit murder when you’re
doing it for your own motivation? How cold do you
have to be? What is the benefit that would cause a
person to be that cold? [He] ha[s] been promised noth-
ing. Flat out told you [that he] get[s] no benefit. It’s
expected that [he] would cooperate as a good citizen
and a good person.’’
The petitioner presented undisputed evidence that
the court granted the sentence modification application
on September 6, 2007.5 A transcript of the August 20,
2007 hearing on the sentence modification application
was admitted in evidence. At the hearing, Stein referred
to his discussions with Bruckmann that preceded the
application for sentence review. Stein, referring to his
posttrial ‘‘agreement’’ with Ortiz to acquiesce in the
application for sentence review, represented to the
court that his ‘‘agreement with Ortiz . . . was that
[Stein] would not object to the modification and then
[he] would leave them on their merits with . . . Bruck-
mann and . . . Ortiz to convince this court as to what,
if any, the appropriate modification should be.’’ In sup-
port of the application, Bruckmann represented that
Ortiz had told him that he was being threatened in jail,
he was labeled as ‘‘a snitch,’’ and he was told that there
was ‘‘a contract out for his life based on his testimony
[against the petitioner].’’ Stein represented to the court
that when he met with Ortiz prior to the petitioner’s
trial, he found Ortiz to be ‘‘extremely credible’’ and that
he believed his testimony was ‘‘clearly influential’’ in
terms of the conviction obtained by the state against
the petitioner. Stein testified that during his pretrial
meeting with Ortiz, Stein told him that he ‘‘was not in
a position to promise him anything other than the fact
that [he] would make known at the appropriate point
in time about the cooperation that [Ortiz] gave to the
state with regard to the [petitioner’s] homicide case,
which is where we’re at now, fulfilling [Stein’s]
agreement with . . . Ortiz.’’ Stein testified that Ortiz
had contacted him to let him know that he has been
‘‘facing continuous threats’’ as a result of his coopera-
tion with the state.
On appeal, in challenging the court’s findings of fact,
the petitioner argues: ‘‘It is unquestionable—in light of
the evidence presented to the habeas court—that Ortiz
was looking for consideration when he first wrote to
the state. Secondly, it is unquestionable that the prose-
cuting authority promised Ortiz to make his cooperation
known prior to testifying, be it to a judge or another
person. Thirdly, it is unquestionable that Stein recog-
nized Ortiz’ status as a sentenced prisoner at the time
that this promise was made. Fourthly, it is unquestion-
able that, at the petitioner’s trial, Ortiz testified that it
was his understanding that only a judge could effectuate
a change upon his sentence. Fifthly, it cannot reason-
ably be disputed that the only reasonable means for
Stein’s acknowledgement of cooperation to a judge to
have any conceivable effect on Ortiz’ sentence is by
means of a sentence modification hearing.6 Sixthly, the
passage of time between the conclusion of the petition-
er’s criminal proceedings and Ortiz’ sentence modifica-
tion cannot be disputed. Seventhly, it cannot be
disputed that, despite Ortiz’ sentence modification
application being predicated upon ‘threats,’ Ortiz never
sought protective custody while incarcerated. Finally,
it is undisputable that the state’s acquiescence was nec-
essary for a judge to hear Ortiz’ application for a sen-
tence modification, as Ortiz’ sentence exceeded three
years.’’ (Footnote in original.)
Having discussed relevant evidence before the court,
we turn to some principles of law applicable to claims
of this nature. ‘‘[T]he law governing the state’s obliga-
tion to disclose exculpatory evidence to defendants in
criminal cases is well established. The defendant has
a right to the disclosure of exculpatory evidence under
the due process clauses of both the United States consti-
tution and the Connecticut constitution. . . . In order
to prove a Brady violation, the defendant must show:
(1) that the prosecution suppressed evidence after a
request by the defense; (2) that the evidence was favor-
able to the defense; and (3) that the evidence was mate-
rial. . . .
‘‘It is well established that [i]mpeachment evidence
as well as exculpatory evidence [fall] within Brady’s
definition of evidence favorable to an accused. . . .
[An express or implied] plea agreement between the
state and a key witness is impeachment evidence falling
within the definition of exculpatory evidence contained
in Brady . . . .
‘‘The [United States] Supreme Court established a
framework for the application of Brady to witness plea
agreements in Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United
States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972). . . . Drawing from these cases, this court has
stated: [D]ue process is . . . offended if the state,
although not soliciting false evidence, allows it to go
uncorrected when it appears. . . . If a government wit-
ness falsely denies having struck a bargain with the
state, or substantially mischaracterizes the nature of
the inducement, the state is obliged to correct the mis-
conception. . . . Regardless of the lack of intent to lie
on the part of the witness, Giglio and Napue require
that the prosecutor apprise the court when he knows
that his witness is giving testimony that is substantially
misleading. . . . A new trial is required if the false testi-
mony could . . . in any reasonable likelihood have
affected the judgment of the jury. . . .
‘‘The prerequisite of any claim under the Brady,
Napue and Giglio line of cases is the existence of an
undisclosed agreement or understanding between the
cooperating witness and the state. . . . Normally, this
is a fact based claim to be determined by the trial court,
subject only to review for clear error.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Ouel-
lette, 295 Conn. 173, 185–87, 989 A.2d 1048 (2010).
‘‘[T]he jury’s estimate of the truthfulness and reliabil-
ity of a . . . witness may well be determinative of guilt
or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying falsely that
a defendant’s life or liberty may depend. . . . Accord-
ingly, the Brady rule applies not just to exculpatory
evidence, but also to impeachment evidence . . .
which, broadly defined, is evidence having the potential
to alter the jury’s assessment of the credibility of a
significant prosecution witness. . . . Because a plea
agreement is likely to bear on the motivation of a wit-
ness who has agreed to testify for the state, such
agreements are potential impeachment evidence that
the state must disclose. . . .
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. The Brady rule is based on
the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by
which truth is uncovered, but to ensure that a miscar-
riage of justice does not occur. Thus, the prosecutor is
not required to deliver his entire file to defense counsel,
but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a
fair trial . . . . In a classic Brady case, involving the
state’s inadvertent failure to disclose favorable evi-
dence, the evidence will be deemed material only if
there would be a reasonable probability of a different
result if the evidence had been disclosed. [The] . . .
touchstone of materiality is a reasonable probability of
a different result, and the adjective is important. The
question is not whether the defendant would more likely
than not have received a different verdict with the evi-
dence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy
of confidence. A reasonable probability of a different
result is accordingly shown when the government’s evi-
dentiary suppression undermines confidence in the out-
come of the trial. . . .
‘‘When . . . a prosecutor obtains a conviction with
evidence that he or she knows or should know to be
false, the materiality standard is significantly more
favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected
the judgment of the jury. . . . This standard . . .
applies whether the state solicited the false testimony
or allowed it to go uncorrected . . . and is not substan-
tively different from the test that permits the state to
avoid having a conviction set aside, notwithstanding a
violation of constitutional magnitude, upon a showing
that the violation was harmless beyond a reasonable
doubt. . . . This strict standard of materiality is appro-
priate in such cases not just because they involve prose-
cutorial misconduct, but more importantly because
they involve a corruption of the truth-seeking function
of the trial process. . . . In light of this corrupting
effect, and because the state’s use of false testimony
is fundamentally unfair, prejudice sufficient to satisfy
the materiality standard is readily shown . . . such
that reversal is virtually automatic . . . unless the
state’s case is so overwhelming that there is no reason-
able likelihood that the false testimony could have
affected the judgment of the jury.’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
Adams v. Commissioner of Correction, 309 Conn. 359,
369–73, 71 A.3d 512 (2013).
Our Supreme Court has recognized that evidence that
merely suggests an informal understanding between the
state and a state’s witness may constitute impeachment
evidence for purposes of Brady. State v. Floyd, 253
Conn. 700, 740, 756 A.2d 799 (2000). Such evidence is
by no means limited to the existence of plea agreements.
‘‘Any . . . understanding or agreement between any
state’s witness and the state police or the state’s attor-
ney clearly falls within the ambit of Brady principles.
. . . An unexpressed intention by the state not to prose-
cute a witness does not. . . .
‘‘The question of whether there existed an agreement
between [a witness] and the state is a question of fact
. . . . When reviewing the decision of a habeas court,
the facts found by the habeas court may not be dis-
turbed unless the findings were clearly erroneous. . . .
A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence in the record to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . This court does not retry the case or
evaluate the credibility of the witnesses. . . . Rather,
we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . 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. . . . A petitioner bears
the burden of proving the existence of an agreement
between the state or police and a state’s witness.’’ (Cita-
tions omitted; internal quotation marks omitted.) Elsey
v. Commissioner of Correction, 126 Conn. App. 144,
152–53, 10 A.3d 578, cert. denied, 300 Conn. 922, 14
A.3d 1007 (2011).
The petitioner argues that the court’s finding that no
pretestimonial agreement existed was clearly errone-
ous and that ‘‘[t]he habeas court’s findings should
impress upon this court the definite conviction that a
mistake has been committed.’’ The petitioner correctly
suggests that the evidence of what transpired between
Stein and Ortiz generally is not in dispute. The import
of that evidence, that is, whether it reflected the exis-
tence of an unwritten or informal understanding that
implicated Brady, is highly disputed. That factual issue
is at the heart of the petitioner’s Brady claim.
As an initial matter, the petitioner argues that the
court misinterpreted or failed to understand the import
of his claim. The petitioner argues that the court
focused solely on whether a plea agreement between
Ortiz and the state existed, rather than on whether any
agreement that would have benefitted Ortiz existed and,
thus, reasonably might be viewed as motivating his testi-
mony. The court’s decision reflects otherwise. Despite
its brevity, the court’s opinion reflects that it did not
limit its analysis to the existence of a written or formal
agreement between Stein and Ortiz or the existence of
a plea agreement. Instead, the court referred to the
lack of any ‘‘undisclosed understandings,’’ the lack of
‘‘clandestine plea arrangements,’’ and the fact that ‘‘no
deals were struck’’ between Stein and the witnesses
at issue, including Ortiz. (Emphasis added.) Thus, it
appears that the court focused on the claim as framed
by the petitioner’s amended petition.7
Essentially, the petitioner’s disagreement with the
court’s findings of fact concerns the court’s failure to
interpret the evidence consistently with his allegations.
The petitioner relies heavily on the timing of the events
at issue and argues that it is circumstantial evidence
that compelled a finding that, prior to the petitioner’s
criminal trial, Stein and Ortiz had come to an under-
standing that merited disclosure under Brady. Ortiz
received an eight year prison sentence. Ortiz testified
for the state at the petitioner’s criminal trial. Several
months later, Stein agreed that Ortiz’ sentence modifica-
tion application should be considered by the sentencing
court. Thereafter, the court granted Ortiz’ application
and reduced his sentence by five years.
In reaching its factual findings, the court had the
opportunity to consider the testimony of Ortiz and Stein
with respect to their conversations prior to the petition-
er’s trial. Both were consistent in their denial that, prior
to the petitioner’s trial, any agreement had been reached
or that any quid pro quo existed beyond that which was
unambiguously disclosed to the jury at the petitioner’s
criminal trial—that Ortiz, looking for some type of bene-
fit, hoped that Stein would make his cooperation with
the state known in the future, and that Stein agreed to
confer no benefit to Ortiz beyond making his coopera-
tion known.8 The petitioner did not present evidence
that Stein’s promise to acknowledge Ortiz’ cooperation
either explicitly or implicitly conveyed that Stein would
convey any benefit to Ortiz with respect to a sentence
review application. The petitioner did not present evi-
dence that compelled a finding that, prior to the peti-
tioner’s trial, Stein knew that he would give favorable
treatment to Ortiz’ sentence modification application
or that Ortiz expected Stein to sign off on his application
in exchange for his testimony. To the contrary, Stein
testified that his decision to acquiesce in the application
was based on communications that he had with Ortiz
and Bruckmann, concerning Ortiz’ well-being in prison,
following the petitioner’s trial. Cf. Elsey v. Commis-
sioner of Correction, supra, 126 Conn. App. 155–57
(evidence that court modified sentence of state’s wit-
ness two weeks prior to his testimony suggested exis-
tence of informal understanding between witness and
state under second prong of Brady). The evidence that
Stein was motivated to acquiesce in Ortiz’ sentence
modification application following the petitioner’s trial
did not implicate a duty to disclose under Brady at the
time of trial.
The evidence amply supported the inferences that
the court drew from it, and we are not persuaded that
a mistake was committed. In the absence of a showing
that any understanding existed with respect to sentence
modification, as claimed by the petitioner, he is unable
to demonstrate that it should have been disclosed under
Brady.9 For the foregoing reasons, we conclude that
the petitioner has failed to demonstrate that the court
abused its discretion in denying the petition for certifi-
cation to appeal with respect to this claim.10
II
Second, the petitioner claims that his right to the
effective assistance of counsel was violated by virtue
of representation afforded him by counsel in a prior
habeas proceeding. The petitioner argues that prior
counsel rendered ineffective assistance because they
failed to identify, understand, research, raise, or argue
the Brady claim analyzed in part I of this opinion.
We disagree.
As stated previously, the habeas court determined
that, in light of its finding that no Brady violations
occurred, the petitioner was not entitled to relief with
respect to the present claim. This analysis is sound.
Even if the petitioner could demonstrate that counsel
performed deficiently with respect to the Brady claim
concerning Ortiz, our analysis set forth in part I of this
opinion necessarily leads us to conclude that the court
properly determined that the petitioner was unable to
demonstrate that he was prejudiced by counsel’s perfor-
mance because no Brady violation occurred. See Ger-
ald W. v. Commissioner of Correction, 169 Conn. App.
456, 463–64, 150 A.3d 729 (2016) (petitioner bears bur-
den of proving deficient performance and prejudice
resulting therefrom), cert. denied, 324 Conn. 908, 152
A.3d 1246 (2017). Accordingly, we conclude that the
petitioner has failed to demonstrate that the court
abused its discretion in denying the petition for certifi-
cation to appeal with respect to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The court denied the petition for a writ of habeas corpus ‘‘except for
the restoration of sentence review as ordered previously.’’
2
At the habeas trial, the petitioner’s counsel examined Ortiz in relevant
part, as follows:
‘‘Q. So prior to testifying in the petitioner’s case, what understanding did
you have about how an individual might get released earlier . . . than the
sentence date?
‘‘A. Well, that was never brought up.
‘‘Q. What was your understanding of that process?
‘‘A. My understanding [in] coming forward [was that] Stein said it’s not
a promise. . . . So I’m going up there willingly myself. . . .
‘‘Q. Well, I’m asking you about your understanding of the process by
which you could have been released early from prison. . . . Did you under-
stand that there was some way to get out early?
‘‘A. No . . . it was a hopeful thing I’d get out early, but it was not a
promise.
‘‘Q. But did you have an understanding [as] someone who had been
involved in the criminal justice system how you might be able to get out early?
‘‘A. Yes. . . . Well, my understanding is . . . I come forward and testif[y].
That was my hope to get out early, but other than that, I came forward
myself.’’
The examination of Ortiz by the petitioner’s counsel continued in relevant
part, as follows:
‘‘Q. [B]ut you understood that if you participate in a criminal proceeding,
there’s some chance . . . something could happen that . . . would get
[you] out of prison early.
‘‘A. When I participated in it, it was promised—it was hopeful that some-
thing would happen, but it was, like Stein said, there’s nothing promised.
‘‘Q. So at the conclusion of your discussions . . . with . . . Stein way
back before the petitioner’s trial, did you leave there with an understanding
that you would have an opportunity to get in front of a judge at some point?
‘‘A. No.’’
3
General Statutes § 53a-39 (b) provides: ‘‘At any time during the period
of a definite sentence of more than three years, upon agreement of the
defendant and the state’s attorney to seek review of the sentence, the sen-
tencing court or judge may, after hearing and for good cause shown, reduce
the sentence, order the defendant discharged, or order the defendant dis-
charged on probation or conditional discharge for a period not to exceed
that to which the defendant could have been originally sentenced.’’
4
Ortiz testified that in the letter he intended to thank Stein for working
on his behalf and that Stein had not promised him anything.
5
A copy of the completed application was admitted in evidence. The
portion of the application entitled ‘‘reason for request’’ states: ‘‘[Ortiz] was
a prosecution witness in a murder case that resulted in a murder conviction.
As a result of his cooperation, [Ortiz’] life has been threatened while he
remains incarcerated.’’
6
‘‘At the time of the petitioner’s trial, it may have been possible for Ortiz
to pursue a petition for a writ of [error] coram nobis or . . . a motion to
correct an illegal sentence, but there is no evidence that either were even
considered, nor that Stein’s acknowledgement could have had an appreciable
effect on either mechanism of relief. . . .’’
7
The petitioner alleged that implied plea agreements existed between the
state, on the one hand, and McIntosh and Jefferson, on the other hand. To
the extent that, in its findings of fact, the court referred to plea agreements,
it is reasonable to interpret such references as pertaining to these allegations,
not the allegations pertaining to Ortiz.
8
As discussed previously in this opinion, to the extent that, at the hearing
on the application for sentence modification, Stein testified that he had
reached an ‘‘agreement’’ with Ortiz not to object to the application, it is
clear that such agreement was reached following the petitioner’s trial and
was based on events that occurred following the petitioner’s trial.
9
Intertwined in the analysis of the petitioner’s Brady claim, which is
based upon the state’s failure to disclose certain information concerning
Ortiz, is an argument that the state ‘‘knowingly solicited Ortiz’ false testimony
concerning ‘no promises’ and allowed this testimony to stand uncorrected.’’
He argues that the state failed to disclose certain evidence and that the
prosecutor failed to correct Ortiz’ testimony. It does not appear that the
latter aspect of the claim raised on appeal, which is not based upon the
state’s failure to disclose information concerning Ortiz, but rather on the
state’s failure to correct allegedly perjured testimony given by Ortiz under
Napue v. Illinois, supra, 360 U.S. 264, was distinctly raised before the habeas
court or that the court considered this claim in denying the petition for a
writ of habeas corpus.
‘‘A petition for a writ of habeas corpus must set forth specific grounds
for the issuance of the writ. Practice Book § 23-22 (1) specifically provides
that the petition shall state the specific facts upon which each specific claim
of illegal confinement is based and the relief requested . . . . A reviewing
court will not consider claims not raised in the habeas petition or decided
by the habeas court. . . . Appellate review of claims not raised before the
habeas court would amount to an ambuscade of the [habeas] judge.’’ (Inter-
nal quotation marks omitted.) Rodriguez v. Commissioner of Correction,
131 Conn. App. 336, 351, 27 A.3d 404 (2011), aff’d, 312 Conn. 345, 92 A.3d
944 (2014). ‘‘It is well settled that [t]he petition for a writ of habeas corpus
is essentially a pleading and, as such, it should conform generally to a
complaint in a civil action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamental in our law that
the right of a plaintiff to recover is limited to the allegations of his complaint.’’
(Internal quotation marks omitted.) Abdullah v. Commissioner of Correc-
tion, 123 Conn. App. 197, 201–202, 1 A.3d 1102, cert. denied, 298 Conn. 930,
5 A.3d 488 (2010). The petitioner argues that he raised the Napue issue
sufficiently in his pretrial and posttrial briefs, yet he does not dispute that
he did not raise this issue in his amended petition, which framed the issues
before the court, or that the court did not address the issue, the resolution
of which requires distinct factual findings, it in its memorandum of decision.
Accordingly, we will not consider this claim in our analysis of the court’s
decision to deny the petition for certification to appeal.
10
Additionally, the petitioner argues that this court ‘‘should exercise its
supervisory authority to require a jury instruction concerning the sentence
modification procedure in Connecticut any time the state represents to a
sentenced inmate that the state will make the witness’ cooperation known.’’
‘‘[O]ur supervisory authority . . . is not a form of free-floating justice,
untethered to legal principle. . . . [T]he integrity of the judicial system
serves as a unifying principle behind the seemingly disparate use of our
supervisory powers. . . . [O]ur supervisory powers are invoked only in the
rare circumstance where [the] traditional protections are inadequate to
ensure the fair and just administration of the courts . . . .’’ (Internal quota-
tion marks omitted.) State v. Kuncik, 141 Conn. App. 288, 292–93, 61 A.3d
561, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013). As discussed previously
in this opinion, Brady requires the disclosure of evidence that is favorable
and material to the defense, including impeachment evidence. State v. Ouel-
lette, supra, 295 Conn. 185–87. The petitioner has not persuaded us that the
protections afforded under Brady do not adequately protect his right to a
fair trial.