Gudino v. Commissioner of Correction

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JOAQUIN GUDINO v. COMMISSIONER OF
CORRECTION
(AC 40696)
Lavine, Sheldon and Prescott, Js.*
Syllabus
The petitioner, who had been convicted, on a guilty plea, of murder in
connection with the shooting death of the victim, sought a second
petition for a writ of habeas corpus, claiming that his trial counsel and
his prior habeas counsel had rendered ineffective assistance. Pursuant
to a plea agreement, the petitioner initially had pleaded guilty to man-
slaughter in the first degree with a firearm in exchange for a recom-
mended sentence of twenty-five years of incarceration. After reviewing
the presentence investigation report, however, the trial court informed
the petitioner that it was unwilling to impose the recommended sentence
and permitted him to withdraw his plea. The case thereafter proceeded
to trial but, prior to the close of evidence, the petitioner, pursuant to
a new plea agreement, pleaded guilty to murder in exchange for a
recommended sentence of forty-five years of incarceration, which the
court subsequently imposed. The first habeas court denied the petition-
er’s first habeas petition, in which he alleged that his trial counsel had
rendered ineffective assistance by, inter alia, failing to seek a dismissal
of the jury panel on the basis of alleged juror misconduct. In count one
of the second habeas petition, the petitioner alleged that his trial counsel
rendered ineffective assistance by failing to investigate and present to
the trial court certain mitigating evidence regarding his personal history
and the events leading up to the shooting, which, he argued, would have
persuaded the court to impose the original recommended sentence of
twenty-five years. In count two, the petitioner alleged ineffective assis-
tance of his prior habeas counsel. The habeas court dismissed count
one of the petition as an improper successive claim, and it denied the
petition as to count two. The court thereafter granted the petition for
certification to appeal, and the petitioner appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed count one of the habeas petition alleging ineffective
assistance of trial counsel on the ground that it was an improper succes-
sive claim and, therefore, was barred by the doctrine of res judicata:
the petitioner conceded at his habeas trial that there were no newly
discovered facts or evidence unavailable to him at the time of his first
habeas petition and, although the petitioner raised different factual
allegations and legal theories in support of his claims that his trial
counsel rendered ineffective assistance, the grounds asserted in count
one of the petition were identical to those raised in the prior petition
that was denied, in that each alleged ineffective assistance of counsel;
moreover, the relief sought here, namely, that the court vacate the
petitioner’s conviction and remand the case to the trial court so that
he could argue to that court that the original twenty-five year sentence
should be imposed, was legally indistinct from the relief sought in his
prior habeas petition, in which he requested that the case be remanded
to the trial court, without specifying any further relief, and the petitioner
could not circumvent dismissal of his petition here merely by rewording
his request for relief.
2. The habeas court properly determined that the petitioner failed to demon-
strate that he was prejudiced by the allegedly deficient performance of
his trial counsel and prior habeas counsel and, therefore, properly denied
count two of the habeas petition alleging ineffective assistance of prior
habeas counsel; that court properly determined that there was not a
reasonable probability that, but for trial counsel’s alleged failure to
investigate and present to the trial court certain mitigating information,
the court would have imposed the original recommended sentence of
twenty-five years, as the presentence investigation report adequately
addressed and apprised the trial court of the mitigating evidence of the
petitioner’s background and upbringing, including his history involving
sexual and domestic abuse, drug use, and mental and intellectual deficits,
as well as the circumstances surrounding the shooting of the victim,
that report included a statement from members of the victim’s family
in which they vehemently opposed the twenty-five year sentence, and
the trial court evinced a negative reaction to the report, particularly in
light of the facts that, while the murder case was pending, the petitioner
tampered with witnesses, fled the country, and never expressed any
remorse for the offense.
Argued January 28—officially released July 16, 2019
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
dismissing the petition in part and denying the petition
in part, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Andrew S. Marcucci, assigned counsel, with whom
was Naomi Fetterman, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Joaquin Gudino,
appeals following the granting of his petition for certifi-
cation to appeal from the judgment of the habeas court
dismissing in part and denying in part his amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims, among other things, that the habeas
court improperly (1) dismissed count one of the
amended petition alleging ineffective assistance of trial
counsel on the ground that it constituted an improperly
successive petition, and (2) denied count two alleging
ineffective assistance of prior habeas counsel on the
ground that the petitioner failed to prove that he was
prejudiced by the allegedly deficient performance of
both his prior habeas counsel and his trial counsel. We
disagree and, accordingly, affirm the judgment of the
habeas court.
The relevant procedural history and facts1 are as fol-
lows. In 1996, the petitioner was charged with murder
in violation of General Statutes § 53a-54a. The petitioner
was represented in the trial court by Attorney Robert A.
Skovgaard. On January 28, 1998, the petitioner entered
a guilty plea to a substitute information charging him
with manslaughter in the first degree with a firearm in
exchange for a recommended sentence of twenty-five
years of incarceration. When the petitioner entered his
plea, the court, Dean, J., indicated that its willingness
to impose the recommended sentence was contingent
on its review of a presentence investigation report
(PSI). The case was continued for preparation of the
PSI and for sentencing.
On April 24, 1998, the court informed the parties that
it was unwilling to impose the recommended sentence
in light of unfavorable information contained in the
petitioner’s PSI. Accordingly, the court permitted the
petitioner to withdraw his guilty plea and to enter a
plea of not guilty. Following the withdrawal of the peti-
tioner’s guilty plea, the state amended the information
to reinstate the charge of murder.
A jury trial commenced on July 28, 1998. At trial,
several witnesses testified that the petitioner had shot
the victim. Prior to the close of evidence, the petitioner
and the state reached a new plea agreement, and the
petitioner pleaded guilty to murder in exchange for a
recommended sentence of forty-five years of incarcera-
tion. The court, Nigro, J., subsequently imposed the
recommended sentence.
In 2000, the petitioner filed his first petition for a
writ of habeas corpus. See Gudino v. Warden, Superior
Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX-S (January 7, 2009). Attorney Paul R. Kraus
was appointed by the court to represent the petitioner.
On March 13, 2007, the petitioner filed a three count
sel had provided ineffective assistance of counsel. Spe-
cifically, the petitioner asserted in count one that his
trial counsel was ineffective because he failed (1) to
seek a dismissal of the jury panel on the ground of
alleged juror misconduct, (2) to advise the petitioner
that he would lose his right to raise the juror misconduct
issue on appeal if he pleaded guilty, and (3) to advise
the petitioner about the possibility of pleading guilty
conditionally in order to preserve his right to raise the
juror misconduct issue on appeal. Count two alleged
that the petitioner’s decision to plead guilty was not
knowingly, voluntarily, and intelligently made. Count
three alleged that the trial court violated his due process
rights by failing to declare a mistrial due to alleged
juror misconduct.
A habeas trial was conducted by the court, Hon.
William L. Hadden, judge trial referee. The court subse-
quently denied the petition and the subsequent petition
for certification to appeal. This court dismissed the
petitioner’s appeal from the court’s denial of the petition
certification to appeal. Gudino v. Commissioner of
Correction, supra, 123 Conn. App. 725.
On August 19, 2014, the petitioner filed his second
petition for a writ of habeas corpus. It is this petition
that underlies the present appeal. The habeas court,
Sferrazza, J., appointed a special public defender to
represent the petitioner, who, with counsel’s assistance,
filed a two count amended petition, dated November 28,
2016, in which he raised claims of ineffective assistance
both by his trial counsel and by his prior habeas coun-
sel.
The petitioner alleged in count one of his amended
petition that the performance of his trial counsel was
constitutionally deficient in numerous ways. Many of
the allegations of deficient performance centered on
trial counsel’s alleged failure to investigate and present
to Judge Dean information regarding events leading up
to the commission of the crime and the petitioner’s
substance abuse history, mental health, lack of educa-
tion, learning disabilities, and upbringing, that, accord-
ing to the petitioner, would have persuaded the court to
impose the original recommended sentence of twenty-
five years of incarceration. The petitioner alleged that
there is a reasonable probability that, but for the defi-
cient performance of trial counsel, Judge Dean would
have imposed the recommended twenty-five year sen-
tence for manslaughter in the first degree with a firearm,
and, thus, the petitioner would not currently be serving
a forty-five year sentence for murder. In count two of
his amended petition, the petitioner alleged that his
prior habeas counsel, Kraus, had rendered ineffective
assistance by failing to allege that his trial counsel had
provided ineffective assistance for the reasons enumer-
ated in count one of the amended petition.
On July 7, 2017, following a trial, the second habeas
court dismissed, pursuant to Practice Book § 23-29 (3),2
count one of the amended petition on the ground that
it did not allege any legal grounds different from those
raised in his prior petition or rely on any new evidence
that was not reasonably available when the prior peti-
tion was brought. Accordingly, it dismissed count one
as an improper successive claim.
With respect to count two, the court denied the peti-
tioner relief for three reasons. First, citing State v. Mad-
era, 198 Conn. 92, 97, 503 A.2d 136 (1985), which, in
turn, relied on Tollett v. Henderson, 411 U.S. 258, 93 S.
Ct. 1602, 36 L. Ed. 2d 235 (1973), the court concluded
that the petitioner had waived any challenge to the
allegedly deficient performance of his trial counsel with
respect to the plea proceedings before Judge Dean by
later pleading guilty to murder before Judge Nigro. The
habeas court reasoned that because he had waived any
claim of ineffective assistance against trial counsel, he
could not establish that his prior habeas counsel was
ineffective for failing to raise that claim in his prior
petition.
Second, the court denied the petitioner relief on
count two on the alternative ground that, even if his
claims were not waived by his guilty plea to murder,
the petitioner had failed to demonstrate that habeas
counsel’s performance was constitutionally deficient.
Finally, the habeas court denied the petitioner relief
on the additional alternative ground that he failed to
establish that any allegedly deficient performance prej-
udiced the petitioner. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Specifically, the habeas court concluded that
even if trial counsel had presented all of the information
that the petitioner alleges should have been presented
to Judge Dean about the commission of the crime and
the petitioner’s background, it was unpersuaded that
Judge Dean would have imposed the recommended
twenty-five year sentence.
On July 12, 2017, the habeas court granted the petition
for certification to appeal. This timely appeal followed.
I
We first address the petitioner’s claim that the habeas
court improperly dismissed, pursuant to Practice Book
§ 23-29 (3), count one of his amended petition. The
petitioner argues that, contrary to the conclusion of the
habeas court, count one of the amended petition does
not allege an improperly successive claim because it
contains new factual specifications of ineffective assis-
tance of counsel and seeks different forms of relief
from those sought in his first habeas petition. According
to the petitioner, the claim raised in the first count
of his present petition was not improperly successive
because his first habeas petition alleged ineffective
assistance of trial counsel on the basis of counsel’s
failure to secure a dismissal of the jury panel for juror
misconduct and his subsequent failure to inform the
petitioner that, if he pleaded guilty, he would waive his
right to challenge the court’s juror misconduct ruling
on appeal. The current petition, by contrast, alleges
ineffective assistance of trial counsel on the basis of,
among other things, counsel’s failure to conduct a
proper investigation and to present to Judge Dean criti-
cal information that would have persuaded the court
to impose the recommended twenty-five year sentence.
Alternatively, the petitioner argues that the claim in
count one is not improperly successive because one of
the forms of relief the petitioner seeks in the current
petition with respect to count one is different from the
relief sought in the prior petition. We are unpersuaded
by the petitioner’s arguments and, therefore, affirm the
habeas court’s judgment dismissing count one.
We begin our analysis by reviewing the doctrine of res
judicata as it applies to successive petitions in habeas
corpus proceedings. ‘‘Our courts have repeatedly
applied the doctrine of res judicata to claims duplicated
in successive habeas petitions filed by the same peti-
tioner. . . . In fact, the ability to dismiss a petition [if] it
presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new
evidence not reasonably available at the time of the
prior petition is memorialized in Practice Book § 23-
29 (3).’’ (Citations omitted; internal quotation marks
omitted.) Diaz v. Commissioner of Correction, 125
Conn. App. 57, 64–65, 6 A.3d 213 (2010), cert. denied,
299 Conn. 926, 11 A.3d 150 (2011).
Pursuant to Practice Book § 23-29 (3), ‘‘[i]f a previous
application brought on the same grounds was denied,
the pending application may be dismissed without hear-
ing, unless it states new facts or proffers new evidence
not reasonably available at the previous hearing.’’ (Foot-
note omitted; internal quotation marks omitted.) Zollo
v. Commissioner of Correction, 133 Conn. App. 266,
277, 35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d
1120 (2012) (appeal dismissed May 1, 2013). ‘‘[A] peti-
tioner may bring successive petitions on the same legal
grounds if the petitions seek different relief. . . . But
where successive petitions are premised on the same
legal grounds and seek the same relief, the second peti-
tion will not survive a motion to dismiss unless the
petition is supported by allegations and facts not rea-
sonably available to the petitioner at the time of the
original petition.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Id., 278.
Finally, ‘‘[t]he conclusions reached by the trial court
in its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [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 . . . .’’ (Citation
omitted; internal quotation marks omitted.) Carter v.
Commissioner of Correction, 133 Conn. App. 387, 392,
35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012).
We first address the petitioner’s assertion that,
because his allegation of ineffective assistance of trial
counsel is premised on factual allegations different
from those pleaded in his previous petition, the claim
is not improperly successive. In making this assertion,
he relies on Carpenter v. Commissioner of Correction,
81 Conn. App. 203, 210–12, 840 A.2d 1 (2004), rev’d
in part, 274 Conn. 834, 878 A.2d 1088 (2005), for the
proposition that a successive claim of ineffective assis-
tance of counsel against the same attorney is not subject
to dismissal pursuant to Practice Book § 23-29 (3) pro-
vided that it contains different factual specifications of
deficient performance from those pleaded in his previ-
ous petition. The decision in Carpenter, however, was
reversed in part by our Supreme Court because it con-
cluded that this court should not have addressed the
question of whether the petition was barred by res
judicata in light of the fact that the commissioner never
sought dismissal of the petition on that ground. See
Carpenter v. Commissioner of Correction, 274 Conn.
834, 847, 878 A.2d 1088 (2005) (‘‘[t]he portion of the
Appellate Court’s judgment concluding that the petition
was not a successive petition is reversed; the judgment
is affirmed in all other respects’’).
To the contrary, the petitioner’s claim is controlled
by Alvarado v. Commissioner of Correction, 153 Conn.
App. 645, 103 A.3d 169, cert. denied, 315 Conn. 910, 105
A.3d 901 (2014). In Alvarado, this court squarely held
that, in the absence of allegations and facts not reason-
ably available to the petitioner at the time of the original
petition or a claim for different relief, a subsequent
claim of ineffective assistance directed against the same
counsel is subject to dismissal as improperly succes-
sive. Id., 650–51. As the court in Alvarado stated: ‘‘Iden-
tical grounds may be proven by different factual
allegations, supported by different legal arguments or
articulated in different language. . . . However they
are proved, the grounds that the petitioner asserted are
identical in that each alleges ineffective assistance of
counsel, and, therefore, the habeas petition was prop-
erly dismissed.’’ (Citation omitted; internal quotation
marks omitted.) Id., 651; see also Kearney v. Commis-
sioner of Correction, 113 Conn. App. 223, 235, 965 A.2d
608 (2009) (petitioner was barred, as matter of res judi-
cata, from raising in second petition same claim of
ineffective assistance of counsel raised in his first peti-
tion); McClendon v. Commissioner of Correction, 93
Conn. App. 228, 230–32, 888 A.2d 183 (court properly
dismissed second habeas petition alleging ineffective
assistance of counsel where second petition was prem-
ised on same legal grounds as first petition alleging
ineffective assistance of counsel and buttressed by no
new facts alleged not to have been reasonably available
while first habeas petition was pending), cert. denied,
277 Conn. 917, 895 A.2d 789 (2006).
We turn next to the petitioner’s assertion that count
one should not have been dismissed as improperly suc-
cessive because it sought different relief from his prior
petition. Specifically, the petitioner relies on the fact
that in his amended petition, he requests the court to
vacate his conviction and remand this case to the trial
court to permit him ‘‘the opportunity to persuade the
trial court that the original plea bargain should be
imposed,’’ whereas in his prior petition, he simply had
requested that the case be remanded to the trial court
without specifying any further relief. This assertion is
meritless.
This court previously rejected in Carter v. Commis-
sioner, supra, 133 Conn. App. 387, the assertion that a
petitioner can avoid dismissal of a successive petition
by rewording his request for relief. In Carter, the peti-
tioner claimed that the court improperly dismissed his
insufficiency of the evidence claim as a successive peti-
tion barred by res judicata. Id., 394. The petitioner
claimed that, by seeking the remedy of a judgment of
acquittal, his petition sought different relief from his
previous petition in which he requested a new trial.
Id. The petitioner, however, also requested in his first
petition, ‘‘ ‘such other relief [as] law and justice
require.’ ’’ Id. Further, ‘‘because the petitioner’s claim
in that first habeas was the insufficiency of evidence
leading to his conviction, if he had been successful the
only appropriate remedy would have been an order of
acquittal . . . .’’ Id. The court ‘‘was not persuaded by
[the petitioner’s] novel argument,’’ stating that, ‘‘[t]he
reason of the law is not so thin . . . as to reward a
petitioner merely for rewording the relief requested in
two separate petitions . . . .’’ Id.
We agree with the habeas court that the relief
requested in both the first and second habeas actions
‘‘are legally indistinct for purposes of evaluating
whether the present action is a successive petition
under Practice Book § 23-29 (3).’’ Further, we agree
with the habeas court that ‘‘[t]he essential purpose of
both the former and present claims . . . is to vacate
the petitioner’s guilty plea to murder and the resulting
sentence and return the case to the criminal docket for
further adjudication.’’ In both petitions, the petitioner
requested that his conviction and sentence be vacated
and his case be remanded to the trial court. Despite
his attempt at reformulation, the petitioner functionally
seeks the same relief in both petitions.
Because the petitioner is bringing a claim on the same
legal ground and seeking the same relief, he can avoid
dismissal only by alleging and demonstrating that evi-
dence necessary to support the newly asserted facts
was not reasonably available at the time of the prior
petition. See Practice Book § 23-29 (3). The petitioner,
however, conceded during his habeas trial that there
were no new facts or evidence not reasonably available
to Kraus at the time he filed his previous petition. There-
fore, the habeas court properly concluded that the peti-
tioner’s claim of ineffective assistance of trial counsel
was an improperly successive claim and, thus, is barred
by the doctrine of res judicata. Accordingly, we affirm
the habeas court’s judgment dismissing the first count
of the amended petition, in which that claim is alleged.
II
We next address the petitioner’s claim that the habeas
court improperly denied count two of his petition. Spe-
cifically, the petitioner argues that the habeas court
improperly concluded that (1) he had waived any claims
against prior habeas counsel and trial counsel by plead-
ing guilty before Judge Nigro,3 (2) he failed to demon-
strate that the performance of both prior habeas
counsel and trial counsel was constitutionally deficient
and (3) he failed to demonstrate that there is a reason-
able probability that, but for trial counsel’s deficient
performance, Judge Dean would have imposed the rec-
ommended twenty-five year sentence for manslaughter
in the first degree with a firearm.
With respect to the petitioner’s first argument, the
state concedes that the habeas court misapplied Tollett
v. Henderson, supra, 411 U.S. 258, in concluding that
the petitioner had waived at least some of the claims
alleged in count two of his amended petition. In light
of this partial concession, and because the judgment
of the habeas court must be affirmed on at least one
of the alternative grounds decided by the court, we
decline to opine on whether the rule of waiver set forth
in Tollett applies in this case. Instead, we conclude that
the habeas court properly concluded that the petitioner
failed to demonstrate that he was prejudiced by the
alleged deficient performance of his trial and prior
habeas counsel.
We begin our analysis with the law governing the
petitioner’s claim, as well as our standard of review.
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. . . . As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in Strickland v. Washington,
supra, 466 U.S. 687. First, the [petitioner] must show
that counsel’s performance was deficient. . . . Sec-
ond, the [petitioner] must show that the deficient per-
formance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . In other words, a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of trial counsel must essentially satisfy
Strickland twice . . . .
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he was
entitled to reversal of the conviction and a new trial
. . . .’’ (Citations omitted, internal quotations omitted.)
Gerald W. v. Commissioner of Correction, 169 Conn.
App. 456, 463–65, 150 A.3d 729 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017).
‘‘A court need not first determine whether counsel’s
performance was deficient before examining the preju-
dice suffered by the defendant as a result of the alleged
deficiencies. If it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient preju-
dice, that course should be followed.’’ Strickland v.
Washington, supra, 466 U.S. 670.
Finally, ‘‘[i]t is well settled that in reviewing the denial
of a habeas petition alleging the ineffective assistance
of counsel, [t]his court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous, but our review of whether the facts as found
by the habeas court constituted a violation of the peti-
tioner’s constitutional right to effective assistance of
counsel is plenary.’’ (Internal quotation marks omitted.)
Gerald W. v. Commissioner of Correction, supra, 169
Conn. App. 465.
Turning to the present case, we agree with the habeas
court that the petitioner failed to prove the prejudice
prong of Strickland with respect to trial counsel’s
alleged deficient performance, and, therefore, his claim
of ineffective assistance against habeas counsel also
fails.4 Specifically, the petitioner failed to prove that
a reasonable probability exists that, but for his trial
counsel’s failure to investigate and present further miti-
gating evidence to support the initial plea agreement,
Judge Dean would have imposed the recommended
sentence.
In support of his claim, the petitioner contends that
Judge Dean was unaware of certain information about
the facts leading up to the commission of the offense
and the petitioner’s background and upbringing. Specif-
ically, the petitioner argues that Judge Dean was
unaware that the petitioner was intoxicated at the time
of the shooting; that trial counsel did not provide
enough details regarding the petitioner’s home life, par-
ticularly that the petitioner reported that he was sexu-
ally abused as a child and witnessed domestic abuse;
and the PSI report did not indicate specific diagnoses
and intellectual disabilities with which Leonard Keno-
witz, a substance abuse psychologist and counselor
called as an expert witness by the petitioner at the
second habeas trial, had diagnosed the petitioner.
The habeas court determined, and we agree, that
contrary to the petitioner’s averments, the PSI explored
these topics. The PSI discussed at length the petitioner’s
home life, trouble at school, depression, and propensity
for violence at a young age. Additionally, the PSI report
discussed the argument between the petitioner and the
victim the day of the shooting, an altercation between
the petitioner and the victim the week prior, the peti-
tioner’s regular use of phencyclidine (PCP), and his
mental and intellectual deficits. Therefore, substantial
mitigating evidence was contained in the PSI presented
to Judge Dean.
Despite this mitigating information, the PSI report
stated: ‘‘[The petitioner] is unfortunately the predictable
result of a broken home, an overworked school system,
and criminally influenced peers. He is, however, not
the only child with those burdens, and those others,
for the most part, do not kill in such a cold-blooded
manner.’’ The PSI also stated that ‘‘[the petitioner’s]
initial brushes with the law and subsequent conse-
quences in the criminal justice system were not enough
to deter him from future criminal activities’’ and,
‘‘[g]iven the circumstances of this cold-blooded killing,
[the petitioner’s] history, and for the safety of the com-
munity, it is respectfully recommended that the maxi-
mum sentence be imposed.’’
The habeas court, in its memorandum of decision,
noted Judge Dean’s strong negative reaction to the PSI.
Indeed, at the sentencing hearing Judge Dean stated:
‘‘It is a terrible PSI—not one good thing in the whole
PSI. There’s nothing in this PSI that would give me a
basis for a [twenty-five year] sentence.’’ The habeas
court also noted that Judge Dean’s negative view of the
information contained in the PSI was informed by the
substantial aggravating factors relating to the underly-
ing offense and the petitioner’s actions while the case
was pending, including tampering with witnesses and
‘‘evad[ing] detection and punishment.’’ The petitioner
had pleaded guilty to a premeditated shooting and, after
the commission of the offense, fled the country.
Moreover, the habeas court emphasized that the peti-
tioner failed to show any remorse for his crime. In
its memorandum of decision, the habeas court stated,
‘‘[t]he petitioner never expressed remorse for killing
the victim or even recognition that he caused the legal
troubles in which he found himself embroiled. His atti-
tude about the homicide consisted of exploring the
ways to avoid conviction and punishment.’’ (Emphasis
added.) Finally, the family members of the victim made
it clear to the court in a written statement, which was
incorporated into the PSI, that they vehemently
opposed the recommendation of the twenty-five year
plea sentence.
In light of these facts and what the habeas court
could glean from the limited record about Judge Dean’s
view of the petitioner’s attitude and suitability for a low
sentence, the habeas court simply was unpersuaded
that a more fulsome sentencing presentation by the
petitioner’s trial counsel would have convinced Judge
Dean that a twenty-five year sentence was appropriate
in these circumstances.5 The petitioner has failed to
demonstrate that the factual findings that underlie
Judge Sferrazza’s conclusion are clearly erroneous or
that his ultimate legal conclusion regarding prejudice
was incorrect. Accordingly, we affirm the judgment of
the habeas court dismissing count one and denying
count two of the amended petition.
The judgment is affirmed.
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 facts include those explicitly found by the habeas court, as well as
those stipulated to by the parties and set forth in this court’s decision
in the petitioner’s prior habeas appeal. See Gudino v. Commissioner of
Correction, 123 Conn. App. 719, 3 A.3d 134, cert. denied, 299 Conn. 905, 10
A.3d 522 (2010).
2
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may . . . dismiss the petition, or any count thereof, if it determines that
. . . (3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition . . . .’’
3
The petitioner also contends that the habeas court improperly raised
the issue of waiver sua sponte. It is unnecessary for us to address this
assertion in light of our conclusion that the habeas court properly denied
this count for at least one alternative reason.
4
The habeas court’s ability to assess whether Judge Dean would have
been persuaded by the presentation of additional mitigating information
was made more difficult by the fact that no transcript exists of the April
24, 1998 sentencing proceeding before Judge Dean because the recording
of the proceeding is inaudible. In an attempt to reconstruct the substance
of the proceeding, the habeas court admitted as a full exhibit a copy of a
newspaper article that describes the proceeding in a limited fashion.
5
The petitioner, in his appellate brief, makes a passing reference to certain
instances of deficient performance by his trial counsel occurring after Judge
Dean had declined to impose the recommended sentence. The petitioner
argues that the habeas court failed to consider these issues in deciding that
he was not prejudiced by any deficient performance. Because the petitioner
did not adequately brief this claim, we decline to address it. See In re
Elijah C., 326 Conn. 480, 495, 165 A.3d 1149 (2017) (‘‘Ordinarily, [c]laims
are inadequately briefed when they are merely mentioned and not briefed
beyond a bare assertion. . . . Claims are also inadequately briefed when
they . . . consist of conclusory assertions . . . with no mention of relevant
authority and minimal or no citations from the record . . . .’’ [Internal
quotation marks omitted.]).