Ortiz v. Commissioner of Correction

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ANGEL L. ORTIZ v. COMMISSIONER
OF CORRECTION
(AC 37373)
Sheldon, Keller and Mullins, Js.
Argued March 15—officially released July 5, 2016
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
W. Theodore Koch III, assigned counsel, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief were Gail P. Hardy, state’s attorney,
and Jo Anne Sulik, supervisory assistant state’s attor-
ney, for the appellee (respondent).
Opinion
KELLER, J. Following a grant of certification to
appeal, the petitioner, Angel L. Ortiz, appeals from the
judgment of the habeas court denying his amended
petition for a writ of habeas corpus. The petitioner
claims that the habeas court erroneously concluded
that he failed to demonstrate his actual innocence. We
affirm the judgment of the habeas court.
The following facts and procedural history underlie
this appeal. Following a joint jury trial, the petitioner
and a codefendant, Julio Diaz-Marrero, were each found
guilty of one count of the following crimes: capital fel-
ony in violation of General Statutes (Rev. to 1994) § 53a-
54b (8) and General Statutes § 53a-8; two counts of
capital felony in violation of General Statutes (Rev. to
1994) § 53a-54b (5) and § 53a-8; two counts of murder
in violation of General Statutes (Rev. to 1994) § 53a-
54a (a) and § 53a-8; two counts of felony murder in
violation of General Statutes § 53a-54c; one count of
conspiracy to commit murder in violation of General
Statutes (Rev. to 1994) § 53a-54a (a) and General Stat-
utes § 53a-48 (a); two counts of kidnapping in the first
degree in violation of General Statutes §§ 53a-92 (a) (2)
(A), (B) and (C) and 53a-8; one count of robbery in the
first degree in violation of General Statutes §§ 53a-134
(a) (4) and 53a-8; one count of conspiracy to commit
kidnapping in the first degree in violation of §§ 53a-92
(a) (2) (A), (B) and (C) and 53a-48 (a); and one count
of conspiracy to commit robbery in the first degree in
violation of §§ 53a-134 (a) (4) and 53a-48 (a). The trial
court sentenced the petitioner and Diaz-Marrero to total
effective sentences of life imprisonment without the
possibility of release. Pursuant to General Statutes § 51-
199 (b) (3), the petitioner and Diaz-Marrero appealed
the judgments of conviction directly to our Supreme
Court. Our Supreme Court reversed the judgments in
part, remanding the case to the trial court with direction
to combine the three conspiracy convictions and to
vacate the sentences for two of the conspiracy convic-
tions. The court affirmed the judgments in all other
respects. State v. Ortiz, 252 Conn. 533, 747 A.2d 487
(2000). In addition to rejecting other claims raised by
the petitioner, our Supreme Court rejected the petition-
er’s claim that ‘‘the jury’s finding of guilt is a miscarriage
of justice, reached against the manifest weight of the
evidence, and that the court improperly refused to grant
[the petitioner] a new trial.’’ Id., 570.
Our Supreme Court set forth the facts that the jury
reasonably could have found, as follows: ‘‘In the late
hours of July 27, 1994, and into the early hours of July
28, 1994, the [petitioner and Diaz-Marrero] carried out a
plan to kidnap, rob and kill Hector Alvarado (Alvarado),
and his wife Migdalia Bermudez (Bermudez). The vic-
tims were abducted and robbed in Hartford, and then
taken to Rocky Hill where they were executed by Diaz-
Marrero with a twelve gauge shotgun. Alvarado was
shot in the head and he died instantly. Bermudez was
shot in the back, hips and buttocks, she was left for
dead in the travel portion of the road, and she died
approximately five hours later at Hartford Hospital.
‘‘Alvarado was a known drug dealer, who conducted
an illegal drug selling operation, with the assistance
of [the petitioner], at a residential apartment building
located at 66 Webster Street in Hartford. [The peti-
tioner] was Alvarado’s brother-in-law, and he lived at
66 Webster Street. Alvarado had requested that [the
petitioner] build a secure box in which Alvarado could
store his drugs and money. Accordingly, [the petitioner]
built the secure box and Alvarado kept it in the base-
ment of his home at 109 Adelaide Street in Hartford.
‘‘Diaz-Marrero had come to Hartford from Caguas,
Puerto Rico, a few weeks prior to the murders. He
stayed for approximately one week at 66 Webster Street
with Wilson Rodriguez, who was another resident of
the building. At trial, Wilson Rodriguez testified that on
July 26, 1994, shortly after Diaz-Marrero had stopped
staying with him, his apartment was burglarized and
two shotguns and a rifle were stolen. Before the jury,
Wilson Rodriguez identified the guns that were found
near the crime scene as those that had been stolen
[from his apartment].
‘‘On Wednesday, July 27, 1994, at 8:30 p.m. and again
at 9:30 p.m., Diaz-Marrero and [the petitioner] went to
the home of Alvarado’s mother, Maria Cruz Rodriguez
(Rodriguez), looking for Alvarado. Later that night, a
van driven by [the petitioner] stopped on Park Street
in Hartford and Diaz-Marrero, who was in the van, asked
Ramon Caraballo if he wanted to buy some drugs. Cara-
ballo knew Diaz-Marrero as ‘Tongo’ and testified that
they occasionally had used drugs together. Caraballo
got into the van and sat in the front seat next to [the peti-
tioner].
‘‘Another resident of 66 Webster Street, Jesus Roman,
who also knew Diaz-Marrero as ‘Tongo,’ testified about
the events that occurred on the evening of the murders.
According to Roman’s testimony, at 11 p.m., Tongo
pulled up in a van and asked Roman if Alvarado was
around and if he had drugs. Roman told him that Alva-
rado was around and that he had drugs, and Roman
offered to buy the drugs for Diaz-Marrero. Diaz-Marrero
declined Roman’s offer, saying that he wanted to deal
with Alvarado directly, and he asked Roman to tell
Alvarado that Diaz-Marrero would be waiting for him
on Campfield Avenue.
‘‘Roman conveyed Diaz-Marrero’s message to Alva-
rado and offered to go along. The two men and Bermu-
dez then drove in Alvarado’s car to Campfield Avenue
and parked behind the van. Diaz-Marrero exited the
van, walked toward Alvarado’s car and asked him to
step out of the car so they could speak alone. Alvarado
and Diaz-Marrero walked to the front of the van and
Roman and Bermudez exited the car. As Alvarado
returned to his car, Diaz-Marrero, holding a shotgun,
walked toward Alvarado, Bermudez and Roman. Diaz-
Marrero took Bermudez by the arm and fired the shot-
gun into the sidewalk. Just as Diaz-Marrero fired the
shotgun into the sidewalk, Caraballo, who was
attempting to leave the scene and had just opened the
door of the van and placed a foot on the ground, was
struck in the throat by a ricocheting shotgun slug or
pellet. Roman saw Diaz-Marrero take Bermudez, who
was crying, and put her into the van. Still armed, Diaz-
Marrero returned for Alvarado, who took money out
of his pocket and offered it to him. Roman then saw
Alvarado return the money to his pocket and watched
Diaz-Marrero point the shotgun at Alvarado, take him
by the arm and lead him into the van. Roman watched
the van drive away, turning left onto Adelaide Street.
‘‘Caraballo, who had reentered the van after being
shot, testified that although he was injured and bleed-
ing, he was also alert and conscious. He claimed that
Diaz-Marrero had said ‘[l]et’s go to the man’s house.’
The van stopped a short distance later in front of an
apartment building and Diaz-Marrero, still armed with
the shotgun, took Alvarado out of the van and into
the apartment building. Caraballo, [the petitioner] and
Bermudez stayed in the van. Several minutes later, Diaz-
Marrero and Alvarado returned to the van. Diaz-Marrero
carried a paper bag, which he then handed to [the peti-
tioner]. Diaz-Marrero then ordered [the petitioner] to
drive off.
‘‘The van traveled through some traffic lights and
then entered a highway. After the van had traveled a
short distance, it stopped near the side of the road.
Diaz-Marrero exited the van and ordered the victims to
get out, and they complied. Caraballo and [the peti-
tioner] remained in the van. Several shots were then
fired. Diaz-Marrero returned to the van without the vic-
tims and said to [the petitioner], ‘[l]et’s get out of here.’
A few minutes later, Diaz-Marrero threw the shotguns
out the passenger side window of the van. The van
then returned to Hartford. Caraballo was let out on
Park Street.
‘‘On July 29, 1994, a Rocky Hill teenager discovered
a shotgun in the grass by the side of Route 3. The police
were summoned, they seized the shotgun, and they then
discovered and seized the sawed-off stock and a second
shotgun that was found nearby. Both shotguns were
twelve gauge: one was a sawed-off ERA double-barreled
shotgun, and the other was a High Standard single-
barreled shotgun. Several discharged shells found at
the scene were determined to be Winchester Super
X double-O buck shotgun shells fired from the High
Standard shotgun. Bermudez had been shot with both
double-O buckshot and birdshot. The recovered ammu-
nition components were consistent with the ammuni-
tion stolen from Wilson Rodriguez’ apartment.
‘‘Aida Bermudez, [Bermudez’ sister], testified that at
Bermudez’ wake on July 31, 1994, [the petitioner] told
her certain details about the murders. She testified that
[the petitioner] told her the following information: that
three men in a van had kidnapped and killed the victims;
that the victims had been picked up on Webster Street
and taken to Campfield Avenue where a gun was fired
into the sidewalk and pointed at Alvarado, who was
then forced into the van; that Bermudez was not an
intended victim but was nevertheless forced into the
van; that the victims were taken to their home and
forced into the basement, where the men believed that
drugs and money were stored in a wooden box; that
drugs and money were stolen; that the victims were
taken in the van to Rocky Hill; and that Bermudez was
shot when she tried to flee her abductors.
‘‘Diaz-Marrero left Connecticut shortly after the mur-
ders. A police officer from Caguas, Puerto Rico, testified
that he saw Diaz-Marrero in Caguas on August 1, 1994.
[The petitioner] also left Connecticut and was arrested
in New Jersey on August 31, 1995.’’ (Footnote omitted.)
Id., 537–41.
By way of an amended petition for a writ of habeas
corpus, dated August 27, 2012, the petitioner sought
habeas corpus relief on the ground that newly discov-
ered evidence demonstrated his actual innocence. He
requested that the court grant his petition, vacate his
convictions, and release him from custody. In his one
count petition, the petitioner alleged in relevant part:
‘‘The victims, Hector Alvarado and Migdalia Bermudez,
were abducted at gunpoint in Hartford, taken to their
residence at gunpoint and robbed there of narcotics,
money and a television, then driven to Rocky Hill where
they were shot to death. . . . The state’s evidence at
trial indicated that [Diaz-Marrero] kidnapped, robbed
and shot the victims, while [the] petitioner was the
silently complicit driver. . . . In fact, [the] petitioner
had absolutely no role in the crime. . . . In fact, [Diaz-
Marrero] was the driver. Additionally, [Diaz-Marrero]
participated in the abduction and robbery of the victims,
in collaboration with two of the state’s critical wit-
nesses: Ramon Caraballo and Jesus Roman. . . . In
fact, Ramon Caraballo instigated the kidnapping, and
he and Jesus Roman were the shooters.’’
Also, the petitioner alleged: ‘‘[The petitioner] is actu-
ally innocent of all crimes of which he was convicted.
. . . The newly discovered evidence to support this
claim is the February 22, 2007 testimony of [Diaz-Mar-
rero] in his [trial on his] own petition for a writ of
habeas corpus; [Marrero v. Warden, Superior Court,
judicial district of New Haven, Docket No. CV-99-
0425076 (January 24, 2008), appeal dismissed, 114 Conn.
App. 901, 969 A.2d 880 (2009)]; as well as [Diaz-Mar-
rero’s] anticipated testimony at trial in the instant peti-
tion. . . . Additional anticipated petitioner’s evidence
will corroborate [Diaz-Marrero].’’ The respondent, the
Commissioner of Correction, left the petitioner to his
proof.
The centerpiece of the evidence presented by the
petitioner at the habeas trial was the testimony of Diaz-
Marrero. Because it is critical to the claim raised in this
appeal, we will set forth the habeas court’s accurate
and detailed summary of that testimony: ‘‘Diaz-Marrero
testified . . . [that] he came to Hartford, Connecticut,
from Puerto Rico in July, 1994, and was staying with
Wilson Rodriguez at 66 Webster Street. He left Puerto
Rico because he had legal issues there. He was a drug
addict and was using every day. He bought his drugs
on Park Street from Alvarado, Roman and others.
‘‘He also met Caraballo on Park Street. He actually
knew Caraballo from when they were in Puerto Rico
because they went to the same school. Caraballo and
Diaz-Marrero began using drugs together. Caraballo
came over to Wilson Rodriguez’ apartment a couple of
times and saw two shotguns and a rifle that Rodri-
guez owned.
‘‘After living with Wilson Rodriguez for a week, Diaz-
Marrero moved in with Caraballo and Carmen Alcaraz
on Carpenter Street. Diaz-Marrero and Caraballo then
decided to steal Wilson Rodriguez’ guns and jewelry.
They went back to Rodriguez’ residence and stole the
three guns and some rings and chains, including a gold
ring with an ‘R’ on it. Caraballo kept and wore that ring.
The guns were initially placed in Caraballo’s apartment
on Carpenter Street, although Diaz-Marrero took one
of the shotguns.
‘‘One or two nights after stealing them, Caraballo,
Diaz-Marrero and Roman used the guns to abduct Alva-
rado and Bermudez. The crimes started as an attempt by
the three to sell the stolen guns and jewelry to Alvarado.
Diaz-Marrero drove a van in which Caraballo was a
passenger to a spot where Roman was waiting outside
with Alvarado and Bermudez. Roman was called over to
the van where he was given at least one of the weapons.
Roman, Alvarado and Bermudez then got in a car and
followed the van down Campfield Avenue, where the
car parked behind the van.
‘‘Everyone got out of the car and van. Roman gave
Diaz-Marrero a rifle, which he put in the van. As Alva-
rado approached the van, Caraballo changed the plans
and decided to rob him. He ordered Alvarado into the
van. Alvarado resisted and grabbed for the shotgun
Caraballo was holding. As they struggled, the shotgun
discharged and Caraballo was hit in the neck. Alvarado
and Bermudez were then restrained and put in the van.
During the struggle, the ring with the ‘R’ fell off of
Caraballo’s finger to the ground.
‘‘Diaz-Marrero got into the driver’s seat and drove
the van to Alvarado’s apartment. Roman drove Alvara-
do’s car there and parked behind the van. Diaz-Marrero
took Alvarado into the apartment and told him to get
money and drugs. Alvarado grabbed a box with money
and drugs and gave it to Diaz-Marrero. Diaz-Marrero
also took a television, which Roman placed in the car.
Diaz-Marrero got back into the van with Alvarado,
where Caraballo and Bermudez were waiting. Caraballo
then communicated nonverbally to Diaz-Marrero that
they needed to kill Alvarado because if they took Cara-
ballo to the hospital and released Alvarado, Alvarado
would know where to find Caraballo. Diaz-Marrero
agreed because he was on drugs and did not want Cara-
ballo to die.
‘‘Diaz-Marrero drove the van onto Interstate 91 head-
ing south. Roman followed in Alvarado’s car. They then
exited the highway and made a U-turn off an entrance
ramp and parked. Roman parked behind the van. Alva-
rado and Bermudez were removed from the van. Cara-
ballo shot Alvarado in the head from behind. Roman
shot Bermudez three times.
‘‘Diaz-Marrero and Caraballo then left in the van.
Roman left in Alvarado’s car. Caraballo wiped the guns
and threw them from the van. Diaz-Marrero then drove
the van to Park Street to return it to its owner. Caraballo
gave the owner some drugs. Caraballo and Diaz-Marrero
then got into Alvarado’s car with Roman and were
driven to Caraballo’s apartment. Alcaraz then took Car-
aballo to the hospital. She returned in the morning and
told Diaz-Marrero to leave. He took a bus to New York
City before returning to Puerto Rico, where he was
later detained and extradited to Connecticut.
‘‘Diaz-Marrero first learned that [the petitioner] had
been arrested for the murders about a year after Diaz-
Marrero was extradited to Connecticut. He saw [the
petitioner] for the first time when he appeared in court.
He told his lawyers that he did not know [the peti-
tioner].’’
In an effort to corroborate the testimony of Diaz-
Marrero, the petitioner presented testimony from Diaz-
Marrero’s trial counsel, Attorney Barry A. Butler and
Attorney Martin Zeldis; Diaz-Marrero’s counsel from
his 2007 habeas corpus proceeding, Attorney Walter
Bansley; as well as Dean Holliday, an acquaintance of
the petitioner and Diaz-Marrero. In relevant part, Butler
testified that, at the time of the criminal trial of the
petitioner and Diaz-Marrero, Diaz-Marrero made it clear
to him and Zeldis that he did not know the petitioner
and saw him for the first time in court. Further, Butler
testified that, contrary to Diaz-Marrero’s testimony in
the present proceeding, in which he admitted being
present at the events at issue, he denied having any
involvement in the crimes. Consistent with Butler’s tes-
timony, Zeldis testified that, at the time of the criminal
trial, Diaz-Marrero told him that the first time that he
ever saw the petitioner was at the trial.
Bansley testified in relevant part that when he repre-
sented Diaz-Marrero in connection with a habeas cor-
pus petition brought by Diaz-Marrero, in which he
sought a new trial, he stated that ‘‘[the petitioner] was
not involved in this, and he seemed pretty adamant that
he wanted to have that come to light.’’ According to
Bansley, Diaz-Marrero ‘‘was consistent every time we
met when we would discuss the facts of the crime that
he wasn’t the shooter, that he was the driver. He was
equally consistent every time I met with him that [the
petitioner] was not present and he had never met [the
petitioner] until the first time they were in court
together.’’ Bansley testified that, although he had
advised Diaz-Marrero that admitting his participation
in the murders, as he did in the present proceeding,
‘‘would not help him and would actually seal his fate,’’
Diaz-Marrero ‘‘was adamant about going forward and
wanting to make it known that he was not the shooter
and that [the petitioner] was innocent.’’ After Diaz-Mar-
rero testified at his own habeas trial, Bansley provided
a transcript of his testimony to the petitioner.
The habeas court aptly summarized Holliday’s testi-
mony: ‘‘Dean Holliday testified that he knew [the peti-
tioner] from when they both lived in Hartford and while
they were both in prison. He further testified to meeting
Diaz-Marrero in prison. Diaz-Marrero showed him the
transcript from his own habeas trial [in 2007] at which
he testified to the same version of events as he did in
this matter. Holliday also testified that [the petitioner]
has the same hair color today as he had in Hartford in
1994. It is and was black. He also never saw [the peti-
tioner] drive a car.’’
Finally, at the habeas trial, the petitioner testified
that, on the night of the murders, he was at Rodriguez’
house with his wife until 2:30 a.m., and that he did not
play any role in the murders. He testified that Alvarado,
who was his wife’s brother, was like a son to him.
He testified that he enjoyed a good relationship with
Bermudez, and that over the years she had provided
assistance to both him and his wife. He testified that,
contrary to Romero’s testimony at his criminal trial, he
never had a conversation with Romero in which he
stated that, if he was apprehended for the crimes, he
would ‘‘take’’ several others ‘‘down with [him].’’Also,
the petitioner testified that Aida Bermudez’ testimony,
that he had implicated himself in the murders during
a conversation at her sister’s wake, was ‘‘a lie.’’
In a thorough memorandum of decision, the habeas
court denied the amended petition for a writ of habeas
corpus. In its findings of fact, the court discussed the
evidence presented at the petitioner’s criminal trial, as
well as the facts that the jury reasonably could have
found. In relevant part, the court observed that the
state’s case against the petitioner was based primarily
on the testimony of several witnesses, including Cara-
ballo, Roman, Maria Cruz Rodriguez, Aida Bermudez,
and Angel Romero. During his testimony at the petition-
er’s criminal trial, Caraballo discussed the events that
took place on the night of the murders. Caraballo testi-
fied that he was present during the events at issue, and
he identified the petitioner as the driver of the van used
to abduct Alvarado and Bermudez. Although Roman did
not implicate the petitioner in the crimes, he testified
in relevant part that he arranged the drug transaction
between Diaz-Marrero and Alvarado, was present when
Diaz-Marrero and Alvarado met on Campfield Avenue,
and observed Diaz-Marrero fire a shot into the sidewalk
before taking the victims into the van and driving away.
Maria Cruz Rodriguez, Alvarado’s mother, testified at
trial that, after Diaz-Marrero’s arrest, she went to the
police station to inquire with regard to the investigation.
She saw a photograph of Diaz-Marrero, and identified
him as having been with the petitioner on the night
of the murders. She testified that, hours before the
kidnappings and murders, Diaz-Marrero, accompanied
by the petitioner, asked her if she knew Alvarado’s
whereabouts. Aida Bermudez, the sister of Migdalia
Bermudez, testified in relevant part that, at her sister’s
wake, the petitioner told her details of how the victims
were abducted and killed. Angel Romero, a son-in-law
of Maria Cruz Rodriguez, testified that several days
following the murders, the petitioner told him: ‘‘ ‘If I
get arrested for this, I’m not going down alone. I’m
taking a lot of people with me.’ ’’ Neither the petitioner
nor Diaz-Marrero testified at the consolidated crimi-
nal trial.
The habeas court found the following facts: ‘‘Based
on a review of the underlying criminal trial proceedings,
it is clear that the petitioner was convicted because the
jury chose to believe the state’s witnesses. There was
no physical evidence that connected the petitioner to
the crimes. Consequently, the jury must have relied
upon Caraballo’s identification of the petitioner as the
driver, along with (1) Rodriguez’ testimony that [the
petitioner] and Diaz-Marrero were looking for Alvarado
hours before he was killed; (2) Aida Bermudez’ testi-
mony that the petitioner knew the details of the crimes;
and (3) Angel Romero’s testimony that [the petitioner]
told him he would take others with him if he was
arrested. The defense had arguments as to why the jury
should reject all of this testimony, but those arguments
were unsuccessful.’’
In its findings, the habeas court went on to state:
‘‘The petitioner argues that the court should credit Diaz-
Marrero’s testimony because it was ‘measured, deliber-
ate and unflinching.’ He also claims that Diaz-Marrero’s
version of events makes much more sense than those
of Caraballo and Roman. For example, according to the
petitioner, Diaz-Marrero’s explanation of how Caraballo
got shot is much more logical than the state’s ricochet
theory, which, in and of itself, suffered from inconsis-
tencies between Caraballo and Roman. Similarly, the
fact that [the petitioner] was not present would explain
how Caraballo and Roman could give disparate descrip-
tions of the driver, neither of which matched [the peti-
tioner].
‘‘Furthermore, the testimony of Caraballo and Roman
leave troubling questions unanswered. First, the state
never explained why Alvarado and Bermudez never
asked [the petitioner], their close relative, why he was
doing this. Nor did they beg for their lives. Certainly,
Bermudez had the opportunity to do so when, according
to Caraballo, Diaz-Marrero took Alvarado into his house
to rob it. By doing so, Diaz-Marrero left Bermudez in
the van with [the petitioner] and Caraballo. Bermudez
would have had an opportunity to talk directly to [the
petitioner] while not being threatened by Diaz-Marrero.
Yet, Caraballo never testified about any such conver-
sation.
‘‘Second, one has to question why Diaz-Marrero
would release Caraballo upon returning to Hartford
when Caraballo was the only eyewitness to the murders,
other than Diaz-Marrero’s coconspirator, [the peti-
tioner]. Having just brutally killed two individuals he
supposedly just met, it is reasonable to expect that
Diaz-Marrero would be willing to kill a third rather than
release a witness who could connect him directly to
the killings. It make more sense that Diaz-Marrero
would assist Caraballo in getting medical treatment if
he was one of his coconspirators in the murders, as
Diaz-Marrero claims [in his present testimony].
‘‘The court recognizes the logic in these arguments.
And these issues do raise questions in the court’s mind
about the guilt of the petitioner. Nevertheless, there are
also reasons to doubt Diaz-Marrero’s credibility and his
version of events. First, Diaz-Marrero admitted that he
hopes he will receive a new trial if the court accepts
his version of the crimes. He believes that if his version
is accepted, then his conviction will be thrown out
because it was based on the perjured testimony of Cara-
ballo and Roman. While the court sees no logical merit
to such a position, it was clear to the court that Diaz-
Marrero’s hope is sincere. Thus, his testimony in this
matter is not motivated solely by a desire to clear his
conscience and free an innocent man, but also to
help himself.
‘‘Similarly, Diaz-Marrero now seeks to minimize his
involvement in the murders. He was convicted of actu-
ally shooting Alvarado and Bermudez. He now claims
that he was only the driver of the van. While his legal
culpability is the same regardless of his role in the
murders, Diaz-Marrero appeared to the court to believe
himself less responsible due to his alleged lesser role.
Once again, Diaz-Marrero’s testimony seemed to be as
much for his perceived own benefit as for that of the
petitioner.
‘‘Diaz-Marrero’s testimony also leaves questions
unanswered. For example, how exactly did Caraballo
communicate nonverbally that Alvarado and Bermudez
needed to be killed and the reason why? Diaz-Marrero
failed to provide any details explaining this feat, and
the court has difficulty envisioning how such a thorough
message (particularly as to why Caraballo wanted them
dead) would be conveyed without words under the
circumstances. Similarly, Diaz-Marrero did not explain
how Caraballo managed to hold a shotgun and shoot
Alvarado in the back of the head while Caraballo was
suffering from a serious wound to his neck. In fact, the
court finds it incongruous that Caraballo would not
leave the van to rob Alvarado’s house, but would get
out of the car to kill Alvarado. Certainly, it would have
been easier for Roman, who, according to Diaz-Marrero,
was willing to shoot Bermudez three times, to also
kill Alvarado. The same would also be true for Diaz-
Marrero, who admitted [that] he was willing to partici-
pate in the plan to kill the victims.
‘‘A further problem with Diaz-Marrero’s testimony is
that there is no corroboration for it. There is no physical
evidence that supports it, and no other witness was
offered that buttressed any of the events as described
by Diaz-Marrero. Carmen Alcaraz did not testify to sub-
stantiate Diaz-Marrero’s claim that he and Roman drove
Caraballo to her and that she told Diaz-Marrero to leave
her apartment the morning after the murders
[occurred]. The owner of the van did not testify. The
van was never found. Wilson Rodriguez did not testify
to identify the ‘R’ ring as belonging to him and has
having been stolen with his guns. Alvarado’s car, which
presumably would have had Caraballo’s blood in it given
Diaz-Marrero’s version of events, was never found or
tested. Roman and Caraballo did not come to court and
recant their testimonies.1’’ (Footnote in original.)
Also, the court found that the petitioner’s testimony
was neither credible nor persuasive. The court stated:
‘‘The court ascribes little weight to the petitioner’s testi-
mony. His alibi is uncorroborated. His wife, having
passed away, was not able to substantiate his testimony.
While she testified briefly about [an alibi defense] at
trial, her testimony was stricken and she was never
subject to cross-examination on the subject. Rodriguez’
testimony at trial also undermined the alibi claim, and,
as far as the court knows, Rodriguez has never strayed
from that testimony. As to Aida Bermudez and Romero,
it is hardly surprising that a man claiming his innocence
would label as liars the two people who testified to
incriminating statements made by him. There is no evi-
dence that either witness has ever retreated from their
testimony, and the court is not prepared to disregard
such testimony based solely on the petitioner’s deni-
als.2’’ (Footnote in original.)
After setting forth its findings of fact, the court went
on to apply governing legal principles to its findings.
At the outset, the court set forth the two-part test for
obtaining habeas relief on the basis of a freestanding
claim of actual innocence articulated in Miller v. Com-
missioner of Correction, 242 Conn. 745, 791–92, 700
A.2d 1108 (1997). The court considered whether the
evidence presented by the petitioner to demonstrate
his actual innocence—Diaz-Marrero’s testimony—was
newly discovered evidence as required by precedent of
this court.3 It is not in dispute that, at the time of the
petitioner’s criminal trial, Diaz-Marrero asserted his
fifth amendment privilege and did not testify. The court,
following the approach set forth in United States v.
Montilla-Rivera, 115 F.3d 1060, 1065–66 (1st Cir. 1997),
concluded that the evidence was newly discovered evi-
dence because it was not known or was unavailable to
the petitioner at the time of his criminal trial.4
The court proceeded to consider whether, under the
legal standard set forth in Miller, the petitioner satisfied
his burden of demonstrating his actual innocence. The
court, repeatedly invoking the standard in Miller during
its analysis, concluded that, at the habeas trial, the
petitioner failed to demonstrate by clear and convincing
evidence that he was actually innocent of the crimes
of which he was convicted. The court correctly
observed that ‘‘[t]he petitioner’s claim relies first and
foremost on the court’s acceptance of Diaz-Marrero’s
testimony as credible. It is virtually the only affirmative
evidence offered of the petitioner’s innocence. All of
the other evidence and arguments relied upon by the
petitioner are directed to undercutting the case the state
presented against the petitioner at trial.’’
The court concluded that the petitioner failed in his
burden because it did not find Diaz-Marrero’s testimony
to be credible and, thus, clear and convincing evidence
of his actual innocence. The court, having set forth the
reasons why Diaz-Marrero’s version of events was not
logically persuasive, reiterated that it doubted the
veracity of Diaz-Marrero, who, facing lifetime imprison-
ment as a consequence of his involvement in the crimes
at issue, ‘‘has absolutely nothing to lose by testifying
falsely for the petitioner.’’ The court also observed that
Diaz-Marrero testified that he hoped that his testimony
in the present proceeding would benefit him in his
efforts to obtain a new trial. The court stated: ‘‘[N]ot
only does he have nothing to lose, but he also hopes to
gain personally from now coming forward. Also, unlike
many postconviction defendants who take on greater
blame and responsibility for the crime, Diaz-Marrero
has tried to minimize his role in the killings to something
less than what he was convicted of [by claiming that
he was the driver, not a shooter]. ‘‘Thus, the fact that
Diaz-Marrero’s testimony did not expose him to adverse
consequences but, in his mind, possibly benefitted him,
weighed against a finding that it was truthful.
The court observed that in addition to the fact that
Diaz-Marrero did not set forth his version of events
until the time of his habeas trial in 2007, when he
attempted to obtain a new trial, his testimony was not
corroborated by any physical evidence. The court
explained: ‘‘There is also no physical evidence to cor-
roborate what Diaz-Marrero said. The petitioner,
despite calling the ‘R’ ring a small but important detail,
did not produce Wilson Rodriguez to establish that the
ring was his and not Alvarado’s, as Roman claimed at
the criminal trial. Other than Diaz-Marrero’s testimony,
the petitioner produced no affirmative evidence that in
any way linked Caraballo and Roman to the crimes.’’
The court observed that, to the extent that the peti-
tioner attempted to demonstrate his actual innocence
by attempting to undermine the credibility of the wit-
nesses who testified for the state at the criminal trial,
his efforts were unpersuasive. The court observed, in
part, that the petitioner did not present any affirmative
evidence that led it to conclude that any state witness,
such as Caraballo, Roman, or Rodriguez, had to have
been incorrect in his or her testimony. Moreover, the
court stated that the petitioner failed to provide any
motive for Aida Bermudez and Romero to testify
untruthfully. The court stated: ‘‘In the end, for the court
to find for the petitioner, it would have to completely
disregard the testimony of the state’s witnesses, none
of whom testified in these proceedings, based princi-
pally on the testimony of Diaz-Marrero. This the court
cannot do. The evidence presented to the court is loose,
equivocal and contradictory. It does not meet the high
standard of clear and convincing [evidence].’’
After finding that the petitioner failed in his burden of
presenting clear and convincing evidence of his actual
innocence, the court concluded its analysis as follows:
‘‘There is no question that, had Diaz-Marrero testified
at the criminal trial as he did before this court, that
one or more jurors may have had a reasonable doubt
as to the petitioner’s guilt. The case against the peti-
tioner was not particularly strong, and counsel has done
an admirable job pointing out the weaknesses in the
state’s case. In fact, this court has some doubt as to the
petitioner’s guilt in light of some of those weaknesses.
Nevertheless, the petitioner stands in a different posi-
tion today than he did prior to trial. He no longer enjoys
the presumption of innocence, and the state no longer
bears the burden of proving him guilty beyond a reason-
able doubt. The burden is now on the petitioner, and
he has failed to meet it.
‘‘To the extent that what Diaz-Marrero testified to is
true, then he must live with the knowledge that not
only did he participate in killing two people, his failure
to accept responsibility for his actions, when it would
have mattered most, has condemned an innocent man
to spend the rest of his life in jail. This is not a possible
outcome that this court takes lightly. However, the law
requires that a petitioner, convicted at a constitutionally
sound trial, do more than raise the mere possibility, or
even probability, that he is innocent. He must make an
extraordinarily high and truly persuasive demonstra-
tion, and unquestionably establish his actual innocence
with clear and convincing evidence. . . . This, the peti-
tioner has failed to do.’’ (Citation omitted.)
Having set forth the underlying facts and procedural
history, we turn to the relevant legal principles and
our standard of review. In Miller v. Commissioner of
Correction, supra, 242 Conn. 791–92,5 which is the
touchstone of our analysis, our Supreme Court articu-
lated the standard of proof that a habeas corpus peti-
tioner must satisfy in order to prevail on a freestanding
claim of actual innocence: ‘‘First, taking into account
both the evidence produced in the original criminal trial
and the evidence produced in the habeas hearing, the
petitioner must persuade the habeas court by clear and
convincing evidence, as that standard is properly under-
stood and applied in the context of such a claim, that
the petitioner is actually innocent of the crime of which
he stands convicted. Second, the petitioner must estab-
lish that, after considering all of that evidence and the
inferences drawn therefrom, as the habeas court did, no
reasonable fact finder would find the petitioner guilty.’’
In the present appeal, we conclude under Miller’s
first prong that the petitioner has failed to satisfy his
burden of proving his actual innocence with clear and
convincing evidence. Accordingly, we need not address
whether, under Miller’s second prong, the petitioner
satisfied his burden of proving that no reasonable fact
finder would find him guilty in light of the evidence
before the criminal and habeas courts. See, e.g., Jackson
v. Commissioner of Correction, 149 Conn. App. 681,
713–14, 89 A.3d 426 (after concluding that petitioner
failed to satisfy his burden of proof under Miller’s first
prong, unnecessary for reviewing court to undertake
analysis under Miller’s second prong), cert. granted on
other grounds, 313 Conn. 901, 96 A.3d 558 (2014).
With respect to the clear and convincing evidence
standard, our Supreme Court stated: ‘‘[I]n order to grant
a petitioner’s request for relief, the habeas court first
must be convinced by clear and convincing evidence
that the petitioner is actually innocent. The clear and
convincing standard of proof is substantially greater
than the usual civil standard of a preponderance of the
evidence, but less than the highest legal standard of
proof beyond a reasonable doubt. It is sustained if the
evidence induces in the mind of the trier a reasonable
belief that the facts asserted are highly probably true,
that the probability that they are true or exist is substan-
tially greater than the probability that they are false
or do not exist. . . .
‘‘Although we have characterized this standard of
proof as a middle tier standard . . . and as an interme-
diate standard . . . between the ordinary civil stan-
dard of a preponderance of the evidence, or more
probably than not, and the criminal standard of proof
beyond a reasonable doubt, this characterization does
not mean that the clear and convincing standard is
necessarily to be understood as lying equidistant
between the two. Its emphasis on the high probability
and the substantial greatness of the probability of the
truth of the facts asserted indicates that it is a very
demanding standard and should be understood as such,
particularly when applied to a habeas claim of actual
innocence, where the stakes are so important for both
the petitioner and the state. We have stated that the
clear and convincing evidence standard should operate
as a weighty caution upon the minds of all judges, and
it forbids relief whenever the evidence is loose, equivo-
cal or contradictory. . . . Thus, we see no functional
difference between this standard, properly understood,
and the formulations in Herrera v. Collins, [506 U.S.
390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)], of both the
majority—a truly persuasive demonstration of actual
innocence . . . [id., 420]; and the concurring opinion of
Justices O’Connor and Kennedy—extraordinarily high
and truly persuasive demonstration[s] of actual inno-
cence. . . . [Id., 426.] Indeed, in Carriger v. Stewart,
95 F.3d 755, 757 (9th Cir. 1996), the [United States]
Court of Appeals [for the Ninth Circuit] equated the
Herrera standard that the petitioner must unquestion-
ably establish [his] innocence with the clear and con-
vincing evidence standard.
‘‘Moreover, we regard this standard as functionally
equivalent to a significant part of the demanding stan-
dard imposed by the California Supreme Court in In re
Clark, [5 Cal. 4th 750, 766, 21 Cal. Rptr. 2d 509, 855 P.
2d 729 (1993)]. If a habeas petitioner has established
by clear and convincing evidence that he is actually
innocent—that is, if he has made a truly persuasive
demonstration of actual innocence—then necessarily
he has cast fundamental doubt on the accuracy of and
reliability of the [criminal] proceedings. . . . We agree,
therefore, with the Texas Court of Criminal Appeals
that, at least when applied to a habeas claim of actual
innocence, the clear and convincing evidence standard
requires an exceedingly persuasive case that [the peti-
tioner] is actually innocent. Ex parte Elizondo, 947
S.W.2d 202 (Tex. Cr. App. 1996).’’ (Citations omitted;
emphasis in original; footnotes omitted; internal quota-
tion marks omitted.) Miller v. Commissioner of Correc-
tion, supra, 242 Conn. 794–96.
Subsequent to Miller, our Supreme Court has
explained that ‘‘actual innocence is demonstrated by
affirmative proof that the petitioner did not commit
the crime.’’ Gould v. Commissioner of Correction, 301
Conn. 544, 561, 22 A.3d 1196 (2011). ‘‘Affirmative proof
of actual innocence is that which might tend to establish
that the petitioner could not have committed the crime
even though it is unknown who committed the crime,
that a third party committed the crime or that no crime
actually occurred. . . . Clear and convincing proof of
actual innocence does not, however, require the peti-
tioner to establish that his or her guilt is a factual impos-
sibility.’’ (Citations omitted; emphasis in original.) Id.,
563–64.
Having discussed the burden of proof that a petitioner
must satisfy to prevail in connection with a claim of
actual innocence, we turn to our standard of review.
With respect to the first component of the petitioner’s
burden, namely, the court’s factual finding with respect
to whether actual innocence was proven by clear and
convincing evidence, ‘‘[t]he appropriate scope of review
is whether, after an independent and scrupulous exami-
nation of the entire record, we are convinced that the
finding of the habeas court . . . is supported by sub-
stantial evidence.’’ Miller v. Commissioner of Correc-
tion, supra, 242 Conn. 803. Our Supreme Court has
explained that this standard of review is appropriate
in light of ‘‘the essentially factual nature of the habeas
court’s task in making that determination,’’ which typi-
cally is based on the court’s assessments of the credibil-
ity of witnesses, as well as ‘‘the importance of the factual
determination at stake, to the interests of the parties,
and to the extraordinary nature of the ultimate remedy
in the event that the petitioner is successful.’’ Id., 804.
In contrast, the plenary standard of review applies to
the issue of whether the petitioner has satisfied the
second component of his burden under the Miller test,
namely, that no reasonable fact finder would find him
guilty. Id., 805.
Turning to the present case, it is not in dispute that
the petitioner presented evidence in the form of Diaz-
Marrero’s testimony to demonstrate that he did not
have any involvement in the murders of the victims;
that Diaz-Marrero, rather than the petitioner, was the
driver of the van; and that Caraballo and Roman shot
the victims. Thus, the evidence at issue was submitted
as proof that third parties committed the crimes.
As set forth previously in this opinion, the habeas
court went into great detail to explain why it did not
view Diaz-Marrero’s testimony to be clear and convinc-
ing evidence that third parties committed the crimes.
The court analyzed Diaz-Marrero’s testimony in great
depth and, in its fact-finding role, unambiguously found
Diaz-Marrero not to have been a credible witness. The
court’s credibility determination reflected a mosaic of
concerns. The court found, among other things, that it
was left with significant concerns about Diaz-Marrero’s
veracity in that his testimony appeared to be self-serving
and part of an overall effort to minimize his role in the
murders. The court found that Diaz-Marrero’s testimony
was not logically persuasive in that it left many ques-
tions related to the commission of the crimes unan-
swered. The court found that Diaz-Marrero’s testimony,
which obviously conflicted with the testimony of other
eyewitnesses to the crimes, was not corroborated by
any physical evidence. Evidence of such character cer-
tainly does not satisfy the demanding standard of proof
that applies to claims of actual innocence, which ‘‘for-
bids relief whenever the evidence [of actual innocence]
is loose, equivocal or contradictory.’’ (Internal quota-
tion marks omitted.) Id., 795.
Before this court, the petitioner’s position unques-
tionably relies upon a determination by this court that
the habeas court erred in its negative assessment of
Diaz-Marrero’s testimony. He argues that before the
habeas court he presented ‘‘clear affirmative evidence
of his innocence’’ and thereby appears to invite this
court to reevaluate Diaz-Marrero’s credibility. This we
cannot do. We are instructed to review the habeas
court’s ultimate finding, namely, that the petitioner
failed to demonstrate his actual innocence, by determin-
ing whether such ultimate finding is supported by sub-
stantial evidence. Id., 806. In rejecting the application
of a more stringent standard of review, our Supreme
Court recognized that many of the determinations that
the habeas court must make in reaching that ultimate
finding are of ‘‘[an] essentially factual nature.’’ Id., 804.
It is simply not possible for a reviewing court to wholly
reevaluate findings that pertain to witness credibility
because a reviewing court lacks the ability to observe
firsthand the demeanor of witnesses. As this court has
often explained: ‘‘As an appellate court, we do not ree-
valuate the credibility of testimony . . . . 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. . . . In a habeas appeal, this court can-
not disturb the underlying facts found by the habeas
court unless they are clearly erroneous . . . . This
court does not retry the case or evaluate the credibility
of 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.’’ (Internal quotation marks
omitted.) Coward v. Commissioner of Correction, 143
Conn. App. 789, 803, 70 A.3d 1152, cert. denied, 310
Conn. 905, 75 A.3d 32 (2013).
In several prior decisions, this court has declined
to disturb credibility determinations made by habeas
courts, and has affirmed the denial of actual innocence
claims when they have been based, at least in part, on
testimony that the habeas court found to be not credi-
ble. See, e.g., Jackson v. Commissioner of Correction,
supra, 149 Conn. App. 711; Corbett v. Commissioner
of Correction, 133 Conn. App. 310, 316–17, 34 A.3d 1046
(2012); Vasquez v. Commissioner of Correction, 128
Conn. App. 425, 446, 17 A.3d 1089, cert. denied, 301
Conn. 926, 22 A.3d 1277 (2011); Charlton v. Commis-
sioner of Correction, 51 Conn. App. 87, 90, 719 A.2d 1205
(1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).
On the basis of our review of the evidence before
the habeas court, we conclude that its assessment of
the weaknesses in Diaz-Marrero’s testimony, made fol-
lowing its firsthand observations of such testimony,
was supported by the evidence.6 Affording, to the extent
possible, a more stringent review with respect to the
underlying issue of credibility, we are left to conclude
that there is nothing in the record that convinces us
that Diaz-Marrero’s testimony was ‘‘highly probably true
or that the probability that the testimony is true is
substantially greater than the probability that it is false.’’
(Internal quotation marks omitted.) Charlton v. Com-
missioner of Correction, supra, 51 Conn. App. 91.
Alternatively, the petitioner argues that ‘‘the habeas
court seemed to credit the essential portions of Diaz-
Marrero’s testimony,’’ yet improperly failed to conclude
that such testimony was clear and convincing evidence
of his actual innocence. In this vein, the petitioner
argues that the court’s decision essentially was inter-
nally inconsistent because, on one hand, it concluded
that Diaz-Marrero’s testimony was not clear and con-
vincing evidence of his actual innocence and, on the
other hand, it observed that such testimony, if presented
at the time of the petitioner’s criminal trial, may have
changed the outcome of the trial.7 The petitioner also
relies on the court’s statement that certain arguments
raised by the petitioner caused it to doubt his guilt, as
well as the court’s characterization of the state’s case
against the petitioner as ‘‘weak.’’
What the petitioner views as an internal inconsistency
in the habeas court’s decision merely reflects the court’s
proper understanding and allocation of the petitioner’s
burden of proof in connection with his claim of actual
innocence. The petitioner’s argument rests upon the
flawed premise that evidence that might have given rise
to reasonable doubt in the mind of the finder of fact,
or which might have tended to undermine the state’s
case at the time of the criminal trial, necessarily is
equivalent to clear and convincing evidence that he did
not commit a crime, that a third party committed the
crime, or that no crime actually occurred. See Gould
v. Commissioner of Correction, supra, 301 Conn. 563.
It should be clear from the relevant precedent set forth
previously in this opinion that such a position is legally
inaccurate. Thus, the fact that the habeas court opined
that Diaz-Marrero’s testimony likely would have
changed the outcome of his criminal trial does not in
any way call into question the correctness of its finding
that the petitioner failed to present clear and convincing
evidence of his actual innocence. Additionally, it was
not inconsistent for the court, in its fact-finding role,
to discredit Diaz-Marrero’s testimony while also opining
that the testimony was of such a nature that it was
possible for a different fact finder, namely, the jury at
the petitioner’s criminal trial, to have found it to be
credible evidence tending to exonerate the petitioner.
As the habeas court observed, the petitioner was
convicted of the crimes at issue in a constitutionally
sound proceeding; his judgment of conviction was
affirmed by our Supreme Court. The petitioner’s habeas
corpus petition did not afford him a second opportunity
to challenge the sufficiency of the evidence presented
by the state at his criminal trial. The petitioner is no
longer entitled to a presumption of innocence, and any
perceived weaknesses in the state’s case, whether
expressed by him or by the habeas court, are not ger-
mane to the issue of whether, under Miller’s first prong,
the petitioner has presented clear and convincing evi-
dence of actual innocence. ‘‘Discrediting the evidence
on which the conviction rested does not revive the
presumption of innocence. To disturb a long settled
and properly obtained judgment of conviction, and thus
put the state to the task of reproving its case many
years later . . . petitioners must affirmatively demon-
strate that they are in fact innocent.’’ (Emphasis in
original.) Gould v. Commissioner of Correction, supra,
301 Conn. 567.
On the basis of independent and scrupulous review
of the entire record of this case, we conclude that sub-
stantial evidence supports the finding by the habeas
court that the petitioner failed to establish by clear and
convincing evidence that he is actually innocent of the
crimes of which he stands convicted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court noted: ‘‘The court understands that it would have been
exceedingly difficult, and in some cases impossible, for the petitioner to
produce much of this evidence. Nevertheless, it is the petitioner’s burden
to prove his innocence by clear and convincing evidence.’’
2
The habeas court concluded: ‘‘The petitioner argues that the statement
to Romero could be misunderstood as the petitioner being worried about
being implicated in Alvarado’s drug business, not the murder. The problem
is that the petitioner did not testify that his words were misunderstood. He
testified that he never said them. Thus, there is no evidence to support
this argument.’’
3
‘‘[O]ur Supreme Court has deemed the issue of whether a habeas peti-
tioner must support his claim of actual innocence with newly discovered
evidence an open question in our habeas jurisprudence. . . . This court,
nevertheless, has held that a claim of actual innocence must be based on
newly discovered evidence. . . . [A] writ of habeas corpus cannot issue
unless the petitioner first demonstrates that the evidence put forth in support
of his claim of actual innocence is newly discovered. . . . This evidentiary
burden is satisfied if a petitioner can demonstrate, by a preponderance of
the evidence, that the proffered evidence could not have been discovered
prior to the petitioner’s criminal trial by the exercise of due diligence.’’
(Citation omitted; internal quotation marks omitted.) Gaston v. Commis-
sioner of Correction, 125 Conn. App. 553, 558–59, 9 A.3d 397 (2010), cert.
denied, 300 Conn. 908, 12 A.3d 1003 (2011).
4
Before this court, the respondent, while not conceding the propriety of
the court’s conclusion that Diaz-Marrero’s testimony was newly discovered
evidence, does not challenge the court’s decision in this regard. The respon-
dent observes that ‘‘the record contains no indication that, at the time of
the criminal trial, Diaz-Marrero had ever made a statement to the petitioner,
or to anyone for that matter, implicating himself in the crimes and/or exoner-
ating the petitioner, such that the petitioner knew or should have known
that Diaz-Marrero possessed information showing that the petitioner was
actually innocent.’’ Because we conclude that the court’s determination,
that Diaz-Marrero’s testimony was not clear and convincing evidence of the
petitioner’s actual innocence, was supported by substantial evidence, we
need not determine whether the court properly considered the testimony
to be newly discovered evidence.
5
We interpret some of the arguments advanced by the petitioner in the
present appeal as an invitation for this court to question the burden of proof
that our Supreme Court carefully articulated in Miller. As an intermediate
court of appeal, we decline to overrule, reevaluate or reexamine the prece-
dent of our Supreme Court. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010).
6
With respect to the court’s observation that Diaz-Marrero had acknowl-
edged during his testimony that he hoped his testimony would benefit him in
some way, we refer to the respondent’s cross-examination of Diaz-Marrero,
during which the following colloquy occurred:
‘‘Q. Now, according to your testimony today, you did not shoot Mr. Car-
aballo?
‘‘A. No.
‘‘Q. You did not shoot Migdalia Bermudez?
‘‘A. No.
‘‘Q. Now, Roman Caraballo, he testified against you at your criminal
trial. Correct?
‘‘A. Yes.
‘‘Q. And Jesus Roman, I think he testified against you, correct?
‘‘A. Yes.
‘‘Q. And Maria Cruz Rodriguez, she testified against you?
‘‘A. Yes.
‘‘Q. So today you’re saying that they were all wrong?
‘‘A. Yes.
‘‘Q. Now . . . you have filed three habeas petitions, correct?
‘‘A. Yes. . . .
‘‘Q. You want a new trial. Right?
‘‘A. Yes.
‘‘Q. Now, do you think if you can show that the state’s witnesses lied,
you can get a new trial?
‘‘A. Yes.’’
Later, Diaz-Marrero testified that he intended to continue to pursue habeas
corpus relief in the form of a new trial.
As we have explained previously in this opinion, Diaz-Marrero testified
that he, not the petitioner, was the driver of the van connected with the
crimes at issue in the present appeal. With respect to the habeas court’s
observation that Diaz-Marrero did not set forth this version of the events
surrounding the victims’ murders until his habeas trial in 2007, we observe
that Diaz-Marrero’s criminal trial attorneys, Butler and Zeldis, were consis-
tent in their testimony that, at the time of the criminal trial, Diaz-Marrero
represented to them that he did not have any involvement in the crimes.
7
The petitioner suggests that the court’s memorandum of decision is
‘‘loaded with cognitive dissonance.’’