Santos v. Commissioner of Correction

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RICHARD SANTOS v. COMMISSIONER OF
CORRECTION
(AC 38803)
Lavine, Sheldon and Harper, Js.
Syllabus
The petitioner, who had been convicted of various crimes in connection
with his alleged conduct in stabbing the victim with the assistance of
an accomplice, E, sought a writ of habeas corpus, claiming that the
prosecutor violated his constitutional right to due process by knowingly
presenting and failing to correct false testimony given by E, and that
his trial counsel provided ineffective assistance by failing to adequately
advise the petitioner about the risks of testifying on his own behalf.
During the petitioner’s criminal trial, E, who was incarcerated at the
time for his role in the stabbing of the victim, testified that he had
observed the petitioner stab the victim with a knife, that the prosecutor
did not offer or promise him anything in exchange for his testimony,
that he was testifying of his own free will, and that his sentence would
not be reduced and that he did not expect to obtain a sentence modifica-
tion in exchange for his testimony against the petitioner. E admitted on
cross-examination, however, that he was testifying against the petitioner
because he anticipated that his sentence may be reduced in exchange
for his truthful testimony. The habeas court rendered judgment denying
the petition and, thereafter, denied the petition for certification to appeal,
and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that the
prosecutor knowingly presented E’s false or misleading testimony and
thereby violated his right to due process; even if the prosecutor, upon
reviewing E’s psychiatric records, should have known that E’s testimony
regarding his expectation of receiving a reduction of his sentence was
misleading, any error was harmless beyond a reasonable doubt, because,
even if the jury disregarded E’s testimony, there was sufficient other
evidence presented by the state, including testimony from the petitioner,
the victim, and several other witnesses, and letters that the petitioner
wrote from prison, to support the petitioner’s conviction.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal as to the petitioner’s claim that his trial counsel
was deficient because she failed to adequately advise the petitioner
about the risks of testifying on his own behalf; that court was not clearly
erroneous in finding that trial counsel’s performance in advising the
petitioner about testifying on his own behalf was not deficient, as the
habeas court credited the testimony of trial counsel and her cocounsel
that they had advised the petitioner about the downsides and advantages
of testifying, it discredited the petitioner’s testimony that his attorneys
spent a short and inadequate amount of time preparing him to testify,
and it specifically found that it was the petitioner’s decision to testify
and that any prejudice he may have suffered was due solely to his
own distrust of his trial counsel, and the court’s factual findings were
supported by the record.
Argued May 23—officially released October 3, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the amended petition was withdrawn
in part and the matter was tried to the court, Fuger,
J.; judgment denying the petition; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Richard Santos, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the habeas court abused its dis-
cretion in denying his petition for certification to appeal
because it improperly concluded that (1) the prosecutor
in his criminal trial did not knowingly present false
or misleading testimony against him,1 and (2) his trial
defense counsel did not render ineffective assistance
of counsel.2 We dismiss the appeal.
The following facts, as found by the habeas court,
and procedural history are relevant to our resolution
of the petitioner’s appeal. ‘‘In the early morning hours
of February 3, 2007, a stabbing occurred at 79 Foster
Street, a red brick crack house in Meriden [house]. The
house was being rented to E.P.,3 the so-called landlord
of the premises, who had resided there for seven years.
The [petitioner] had been staying in a room on the
second floor for about six weeks. . . .
‘‘Kewon Potts [victim] had been hanging out at [the
house] on the afternoon of February 2, 2007, and had
had an argument with the [petitioner] over what the
[petitioner] perceived to be a low offer by [the victim]
to buy a large crack rock. The [petitioner] apparently
also had taken issue with [the victim’s] poor treatment
of [the victim’s] girlfriend, who spent time at [the
house]. . . .
‘‘At about 1 a.m., [on February 3, 2007, the victim]
was walking home from a friend’s house on the corner
of Foster and Lincoln Streets when he passed [the
house]. E.P. and the [petitioner], who were on the
porch, called out to [the victim] to come inside. [The
victim] was led into the house; E.P. immediately barri-
caded the door. The [petitioner] pulled a folding knife
that he frequently carried and began attacking [the vic-
tim], ultimately stabbing him in the head, left arm and
chest. The struggle moved from the living room into
the kitchen. Once there, E.P. blocked the back door,
wielding a large rock as a weapon. The two men then
attempted to force [the victim] into the basement. . . .
‘‘The other persons present at [the house] became
aware of the violent altercation and panicked; many
fled the scene. . . .
‘‘The [petitioner] and E.P. left quickly thereafter. E.P.
went to his mother’s home in New Haven. The [peti-
tioner] went to Alberta Borelli’s house, where his
[friend], Mala Meekins, was staying. While there, the
[petitioner] made several telephone calls in which he
stated that he had stabbed someone. . . . The [peti-
tioner] later traveled to Michigan, where he discarded
the knife.
‘‘The [petitioner] was arrested and charged, by way
of substitute information, with three counts: assault in
the first degree [in violation of General Statutes § 53a-
59 (a) (1)], unlawful restraint in the first degree [in
violation of General Statutes § 53a-95], and possession
of a dangerous instrument [in violation of General Stat-
utes § 53-206]. . . .
‘‘A few weeks prior to trial, Donald Light, a private
investigator hired by the [petitioner], interviewed E.P.
Light noted that E.P. was held at Garner Correctional
Institution (Garner), which he believed housed individ-
uals with mental health issues. Light observed that E.P.
moved slowly, his speech was slow and labored, and
he seemed catatonic. On the basis of Light’s interview
with E.P., the [petitioner] filed a motion for an in camera
review of E.P.’s psychiatric records. The [trial] court
granted the motion and reviewed the records.’’ (Citation
omitted; footnote added; internal quotation marks
omitted.)
‘‘[On December 3, 2008, the state began its case-in-
chief against the petitioner]. During trial, E.P. was called
to testify by the state. He testified that, [on April 18,
2008], he had pleaded guilty to assault in the first degree
as an accessory for his role in the stabbing of the victim
and was incarcerated at Garner. . . .
‘‘E.P. further testified that on the day of the incident,
he had seen the [petitioner] with what looked like a
miniature hunting knife that folded up. He stated that
he had seen the [petitioner] with the knife on previous
occasions and that when the [petitioner] got high, he
would walk around with it in his hand. E.P. stated that
when the victim arrived back at the house, he opened
the door for the victim and they walked toward the
kitchen. There, a fight broke out between the [peti-
tioner] and the victim, and E.P. testified that he saw
the [petitioner] grab the victim and start stabbing him
on the arms and in the chest with the same knife that
he had seen the [petitioner] with earlier.’’ (Internal quo-
tation marks omitted.)
On December 10, 2008, the petitioner was found guilty
by a jury of assault in the first degree, unlawful restraint
in the first degree, and carrying a dangerous weapon.
The trial court, Holden, J., sentenced the petitioner to a
total effective sentence of fifteen years of incarceration,
which was to be suspended after twelve years, followed
by three years of probation. This court subsequently
affirmed his convictions on direct appeal in State v.
Santos, 146 Conn. App. 537, 539, 78 A.3d 230 (2013)
(Santos I).4 Our Supreme Court granted certification5
and affirmed his convictions in State v. Santos, 318
Conn. 412, 121 A.3d 697 (2015) (Santos II).
On February 4, 2015, the petitioner filed an amended
petition for a writ of habeas corpus. The amended peti-
tion contained five claims, two of which are relevant
to, and are preserved for, this appeal: (1) the prosecutor6
in the petitioner’s criminal trial violated his federal con-
stitutional right to due process because she knowingly
presented and failed to correct the false testimony of
E.P., and (2) Auden Grogins, the petitioner’s trial coun-
sel, violated his federal and state rights to effective
assistance of counsel by failing to adequately advise the
petitioner about the risks of testifying on his own behalf.
On June 16, June 17, and August 12, 2015, the habeas
court, Fuger, J., conducted a habeas trial, in which the
petitioner called a number of witnesses to testify.7 On
November 19, 2015, in a memorandum of decision, the
habeas court denied the petitioner’s amended petition.
On November 27, 2015, the petitioner filed a petition
for certification to appeal, which the habeas court
denied on December 8, 2015. This appeal followed.
Additional facts will be set forth as necessary.
We first set forth the standard of review for the peti-
tioner’s claim that the habeas court abused its discre-
tion in denying his petition for certification to appeal.
‘‘First, [the petitioner] must demonstrate that the denial
of his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . . In determining whether the
habeas court abused its discretion in denying the peti-
tioner’s request for certification, we necessarily must
consider the merits of the petitioner’s underlying claims
to determine . . . whether those claims satisfy one or
more of the three criteria . . . .’’ (Internal quotation
marks omitted.) Duncan v. Commissioner of Correc-
tion, 171 Conn. App. 635, 644–45, 157 A.3d 1169, cert.
denied, 325 Conn. 923, 159 A.3d 1172 (2017).
‘‘The conclusions reached by the [habeas] court in
its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the [habeas] court are challenged, [the
reviewing court] must determine whether they are
legally and logically correct . . . and whether they find
support in the facts that appear in the record. . . . To
the extent that factual findings are challenged, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous. . . .
[A] finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Grant v. Commis-
sioner of Correction, 121 Conn. App. 295, 298–99, 995
A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192(2010).
With these principles in mind, we now address the
petitioner’s substantive claims to determine whether
they satisfy one or more of the three criteria.
I
The petitioner first claims that the habeas court
improperly concluded that the prosecutor did not know-
ingly present the false or misleading testimony of E.P.,
and that, regardless, the state presented sufficient evi-
dence to convict the petitioner without E.P.’s testi-
mony.8 We do not need to decide whether the
prosecutor knowingly presented misleading testimony
because we disagree with the petitioner that he suffered
prejudice from any violation.
The following additional facts are necessary in resolv-
ing the petitioner’s claim. On April 18, 2008, due to his
participation in the assault of the victim on February
3, 2007, E.P. pleaded guilty before the trial court, Dami-
ani, J., under the Alford doctrine9 to aiding and abetting
assault in the first degree in violation of General Stat-
utes §§ 53a-59 (a) (1) and 53a-8.10 In exchange for plead-
ing guilty, the prosecutor offered to recommend that
E.P. serve a sentence of fourteen years of incarceration,
execution suspended after six and one-half years, fol-
lowed by three years of probation. The trial court
accepted E.P.’s guilty plea and scheduled his sentencing
to take place on June 13, 2008.
On June 13, 2008, before Judge Damiani sentenced
E.P., he explained to E.P. that if he testified against the
petitioner in the petitioner’s upcoming criminal trial,
‘‘the state will be agreeable to have a hearing on a
motion to modify your sentence.’’ The prosecutor inter-
jected to clarify on the record that she ‘‘did not take
into consideration anything that [E.P.] may do in the
future’’ when offering E.P. his plea deal. The trial court
sentenced E.P. in accordance with the plea agreement.
On December 4, 2008, during the petitioner’s criminal
trial before Judge Holden, the prosecutor called E.P.
to testify. He testified that the prosecutor did not offer
or promise him anything in exchange for his testimony
and that he was testifying of his ‘‘own free will.’’ On
cross-examination, Grogins, the petitioner’s trial coun-
sel, attempted to impeach E.P. by questioning him about
the terms of his plea agreement, but he denied that his
sentence was reduced or that he expected to obtain a
sentence modification in exchange for his testimony
against the petitioner. After questioning E.P. about
Judge Damiani’s comments made during E.P.’s June 13,
2008 sentencing hearing,11 however, E.P. admitted that
he anticipated that his sentence may be reduced in
exchange for his truthful testimony, and ‘‘that’s why
[he was] here today.’’
Sometime after the petitioner was convicted, E.P.
filed a motion to modify his sentence. On April 21, 2009,
Judge Damiani held a sentencing modification hearing
to decide E.P.’s motion, and the prosecutor stated that
she agreed to the hearing. The trial court granted E.P.’s
motion and modified his sentence to be suspended after
five years, as opposed to six and one-half years.
In the petitioner’s amended petition, he alleged that
E.P. testified falsely for the state when he testified that
‘‘he was not offered or promised any consideration by
the prosecuting authority’’ and ‘‘he did not expect to
receive any consideration from the prosecuting author-
ity in exchange for his testimony,’’ and that the prosecu-
tor knew or should have known that E.P.’s testimony
was false.
During the petitioner’s habeas trial, the prosecutor
testified that she did not recall offering a favorable
disposition to E.P. in exchange for his testimony and
that there was nothing in her files that indicated that
an offer was made to E.P. She further testified that
she remembered that before and during the petitioner’s
criminal trial, there had been some discussions per-
taining to E.P.’s psychiatric records and that she had
assumed that she had reviewed them before she dis-
closed them to Grogins. When the petitioner showed
her E.P.’s records, however, she did not recognize them.
On the last day of the habeas trial, the petitioner intro-
duced into evidence a portion of E.P.’s psychiatric
records from the Correctional Managed Health Care
division of the University of Connecticut Health Center,
dated July 31, 2008, which were in the petitioner’s appel-
late records from his direct appeal to our Supreme
Court. The records contained a quote by E.P., indicating
that he stated during a session: ‘‘If I testify against my
codefendant, they’ll take [two] years off my sentence.’’
In denying the petitioner’s amended petition, the
habeas court rejected his claim that the prosecutor
knowingly presented false testimony. In its memoran-
dum of decision, the habeas court stated that ‘‘[t]he
evidence that the petitioner stabbed the victim is clear
and convincing; numerous witnesses, other than E.P.,
testified to that fact. The evidence supporting his con-
viction is more than sufficient, even if E.P.’s testimony
is disregarded in its entirety. Moreover, there is really
no reason to discredit E.P.’s testimony. The petitioner
wishes to have this court believe that E.P. committed
perjury when he said that there was no agreement with
the state for leniency in exchange for his testimony
against the petitioner. Unfortunately for the petitioner’s
argument, the evidence presented at the habeas trial is
clear that there was no explicit agreement with the
state that E.P. would receive favorable consideration
in exchange for his testimony. It is true that E.P. antici-
pated being rewarded for his testimony, but this antici-
pation of a reward is not the same as an agreement
for a reduced sentence. Had the state objected to the
sentence modification filed by E.P. after his testimony,
the facts of this case are such that he would not have had
an enforceable agreement with the state.’’ (Emphasis
in original.)
On appeal, the petitioner argues that the habeas court
mischaracterized the petitioner’s claim, asserting that
he did not claim ‘‘that E.P. had an agreement with the
state’’ but, rather, his ‘‘claim was that E.P’s testimony
about what he expected was false.’’ (Emphasis in origi-
nal.) He argues that ‘‘E.P.’s testimony misled the jury
into believing that E.P. did not have a specific expecta-
tion about how his sentence would change,’’ but ‘‘E.P.
actually expected that two years would be taken off
of his sentence in exchange for testifying against the
petitioner.’’ He contends that this information is evident
in E.P.’s psychiatric records, and because the prosecu-
tor reviewed his records before he testified, she knew
or should have known that E.P. had a specific expecta-
tion that his sentence would be reduced by two years
in exchange for his testimony against the petitioner. He
contends that her failure to correct E.P.’s testimony
was improper, and there was a reasonable likelihood
that ‘‘the petitioner would not have been convicted but
for the false testimony of E.P.’’
‘‘[T]he knowing presentation of false evidence by the
state is incompatible with the rudimentary demands
of justice. . . . Furthermore, due process is similarly
offended if the state, although not soliciting false evi-
dence, allows it to go uncorrected when it appears.
. . . [Giglio v. United States, 405 U.S. 150, 92 S. Ct.
763, 31 L. Ed. 2d 104 (1972)] and [Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)]
require that the prosecutor apprise the court when he
knows that his witness is giving testimony that is sub-
stantially misleading. . . . A new trial is required if the
false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury.’’ (Internal quota-
tion marks omitted.) State v. Goodson, 84 Conn. App.
786, 803, 856 A.2d 1012, cert. denied, 271 Conn. 941,
861 A.2d 515 (2004). ‘‘This standard . . . is not substan-
tively different from the test that permits the state to
avoid having a conviction set aside, notwithstanding a
violation of constitutional magnitude, upon a showing
that the violation was harmless beyond a reasonable
doubt.’’ Adams v. Commissioner of Correction, 309
Conn. 359, 371–72, 71 A.3d 512 (2013).
We conclude that even if the prosecutor should have
known that E.P.’s testimony regarding his expectation
of receiving a two year reduction of his sentence was
misleading because of the quote within his psychiatric
records, any error was harmless beyond a reasonable
doubt. We agree with the habeas court and our Supreme
Court that even if the jury disregarded E.P.’s testimony,
there was sufficient evidence presented by the state to
support the petitioner’s conviction.
‘‘First, there were several witnesses whose testimony
corroborated that of E.P. and on which the jury could
have relied in convicting the [petitioner, including the
victim, Frederick Elbert, Jolie Shelton, and Meekins].
. . .
‘‘The [petitioner’s] own testimony and letters he
wrote from prison provided further support for the
jury’s verdict. The [petitioner] testified that he and the
victim had had an argument during the day of February
2, 2007, leading the victim to get upset and leave the
house. When the victim returned later that night, they
started arguing again and a fight broke out. The [peti-
tioner] admitted that he had been smoking crack
cocaine and drinking alcohol for a few days prior to
the stabbing, including throughout the day of February
2 and into February 3, 2007. . . .
‘‘During the course of the fight, the [petitioner]
noticed that the victim was bleeding. The [petitioner]
testified that he did not remember stabbing the victim,
but because he was high, he could not remember the
details of the fight. He did, however, remember engag-
ing in a fistfight with the victim, trying to avoid getting
hit and trying to ‘get [his] blows off.’ The [petitioner]
testified that his intention was to beat up the victim by
punching him more times than he was punched. On
cross-examination, the [petitioner] stated that when he
is in a fight, he is defending his life, he is trying to win,
and he will not stop until he thinks he has defeated
his opponent. The [petitioner] testified that he always
carried a knife for protection because he had previously
been attacked. He could not remember, however,
whether he had his knife with him during the fight with
the victim, but admitted that he usually carried it.
‘‘In addition to his testimony, the [petitioner] admit-
ted writing some letters to friends about the events
surrounding the stabbing, which provided additional
support for the jury’s verdict.’’ Santos II, supra, 318
Conn. 426–28.
Because the state presented sufficient evidence to
convict the petitioner beyond a reasonable doubt with-
out E.P.’s testimony, we conclude that the habeas court
did not abuse its discretion in denying his petition for
certification to appeal as to this claim.
II
The petitioner’s second claim is that the habeas court
improperly concluded that Grogins did not render inef-
fective assistance of counsel because she failed to ade-
quately advise the petitioner about the risks of testifying
on his own behalf.12 We disagree.
The following additional facts are relevant in resolv-
ing the petitioner’s claim. During the habeas trial, the
petitioner called Dean Popkin, Grogins’ cocounsel for
the petitioner’s criminal trial. He testified that Grogins
requested that he become involved in the case because
the petitioner ‘‘was a very difficult individual to get
along with.’’ He testified that his general practice with
respect to advising his clients on whether they should
testify on their own behalf is that he ‘‘go[es] over the
pros and cons’’ of testifying and explains ‘‘what possible
areas would be covered . . . in cross-examination.’’ He
testified that he ‘‘remember[ed] believing [that the state
had] a strong case against [the petitioner] . . . so it is
very possible that [he] believe[d] [that the petitioner]
had to get up there to give his side of the story.’’
Although he could not recall the specific details of the
conversations that took place between him and the
petitioner, Popkin was sure that he followed his general
practice when advising the petitioner on whether he
should testify.
The petitioner testified that he and his attorneys had
only ‘‘[s]light conversations’’ about whether he should
testify on his own behalf. He testified that Grogins told
him that he would be cross-examined by the prosecutor
‘‘but she didn’t explain in detail how tough it was going
to be.’’ The petitioner admitted, however, that he did
not tell Grogins his side of the story because he ‘‘didn’t
trust her,’’ and that she told him to ‘‘be short [and]
precise’’ when testifying on cross-examination. Import-
antly, the petitioner acknowledged that it was his deci-
sion to testify.
Finally, Grogins testified about her general practice
in regard to advising clients on their right to testify.
She explained that she tells every client that he or
she has a right to testify, but she always explains ‘‘the
downsides’’ of testifying, such as ‘‘impeachment, cross-
examination, [and] criminal records.’’ Grogins testified
that she usually first asks her client ‘‘direct question[s]
that . . . would help the theory of defense. Then [she
does] a mock cross-examination, and tell[s] him [or
her] what to expect with regard to impeachment,
depending on what he [or she] said.’’ Grogins could
not recall what she specifically told the petitioner in
preparing him to testify, but she did remember that he
wanted to testify ‘‘to get his story out there.’’ She testi-
fied that ‘‘he didn’t follow [her] advice’’ on cross-exami-
nation ‘‘because he said too much and got into things
that [she] wouldn’t have gotten into . . . .’’
The habeas court denied the petitioner’s claim that
Grogins rendered ineffective assistance of counsel. In
its memorandum of decision, it explained that ‘‘[i]t is
clear from the testimony of the petitioner and the com-
ments of both his attorneys that he was a difficult client.
By his own admission, he did not trust . . . Grogins,
so he did not tell his side of the story to her. . . . The
testimony of his attorneys is clear that he was properly
advised as to his right to testify, the downsides of doing
so and the potential advantages. The petitioner is clearly
the one who made the decision to take the stand on
his own behalf. Given all of these factors, the task of
preparing him for his testimony was made more difficult
by the petitioner’s own distrust and not some deficiency
of performance on the part of . . . Grogins.’’
On appeal, the petitioner argues that Grogins failed
to properly advise the petitioner about the risks of testi-
fying because she ‘‘advised [him] that the jury would
want to hear the petitioner’s side of the story,’’ even
though ‘‘the most damaging testimony was elicited dur-
ing the petitioner’s direct examination by his own coun-
sel.’’ (Internal quotation marks omitted.) He also
contends that Grogins failed to adequately prepare him
for cross-examination. He argues that there was a rea-
sonable probability that but for Grogins’ failure to prop-
erly advise him about the risks of testifying, the outcome
of the trial would have been different.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). . . . [H]e must show . . . (1) that counsel’s
performance was deficient and (2) that the deficient
performance prejudiced the defense. . . . Because
both prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Citation omitted;
internal quotation marks omitted.) Mukhtaar v. Com-
missioner of Correction, 158 Conn. App. 431, 437, 119
A.3d 607 (2015). The habeas court in the present case
addressed only the first Strickland prong and found
that Grogins’ performance was not deficient. ‘‘To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill in
the criminal law. . . . [A] court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance
. . . .’’ (Internal quotation marks omitted.) Id., 437–38.
‘‘[Our appellate courts do] not retry the case or evalu-
ate the credibility of the witnesses. . . . Rather, [an
appellate court] must defer to the [trier of facts’] assess-
ment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude. . . . The habeas judge, as the trier of facts,
is the sole arbiter of the credibility of witnesses and
the weight to be given to their testimony.’’ (Internal
quotation marks omitted.) Taylor v. Commissioner of
Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007).
We conclude that the habeas court was not clearly
erroneous in finding that Grogins’ performance in advis-
ing the petitioner about testifying was not deficient
because all of the habeas court’s factual findings are
supported by the record. It credited Popkin’s and Grog-
ins’ testimonies that they advised the petitioner about
the downsides and advantages of testifying, and it dis-
credited the petitioner’s testimony that his attorneys
spent little time preparing him to testify. Notably, it
specifically found that it was the petitioner’s decision
to testify and that any prejudice he may have suffered
was due solely to his own distrust of Grogins.
Because the petitioner failed to show that Grogins’
performance was deficient, we conclude that the
habeas court did not abuse its discretion in denying his
petition for certification to appeal as to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner’s first claim is constitutional in nature. See State v. Jordan,
314 Conn. 354, 370–71, 102 A.3d 1 (2014). ‘‘Habeas, as a collateral form of
relief, is generally available to litigate constitutional issues only if a more
direct route to justice has been foreclosed through no fault of the petitioner.’’
(Internal quotation marks omitted.) Salters v. Commissioner of Correction,
141 Conn. App. 81, 87, 60 A.3d 1004, cert. denied, 308 Conn. 932, 64 A.3d
330 (2013). The petitioner asserted in his amended petition that he ‘‘did not
raise this claim in any prior proceedings,’’ and, therefore, admitted that he
did not properly file this claim through a direct appeal. The respondent,
however, failed to assert the affirmative defense of procedural default, and
it is ‘‘[o]nly after the respondent raises the defense of procedural default
in accordance with [Practice Book] § 23-30 (b) does the burden shift to the
petitioner to allege and prove that the default is excused.’’ Crawford v.
Commissioner of Correction, 294 Conn. 165, 176, 982 A.2d 620 (2009). We
will, therefore, review the merits of the petitioner’s constitutional claim.
2
The petitioner also claims on appeal that the habeas court improperly
concluded that the trial court, Damiani, J., did not improperly order the
destruction of evidence relevant to his criminal case, namely the two knives
police found in E.P.’s kitchen while they were investigating E.P.’s case,
before he had the opportunity to examine and test the evidence. Specifically,
he argues that the trial ‘‘court’s failure to adopt adequate procedures to
avoid the destruction of evidence where there are multiple codefendants
violated the petitioner’s right to due process.’’ He contends that the habeas
court ‘‘applied the wrong legal standard’’ in addressing his claim because
it did not review his claim under ‘‘the [Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)] balancing test.’’ The respondent argues
that the petitioner’s claim is not reviewable because he is arguing a different
claim on appeal than the one he alleged in his amended petition. Specifically,
he argues that because the habeas court did not rule on the merits of the
claim the petitioner now argues on appeal, and because the petitioner failed
to file a motion for articulation, his claim is unreviewable. After a careful
review of the record, we agree with the respondent.
‘‘This court is not bound to consider claimed errors unless it appears on
the record that the question was distinctly raised . . . and was ruled upon
and decided by the court adversely to the [petitioner’s] claim. . . . This
court is not compelled to consider issues neither alleged in the habeas
petition nor considered at the habeas proceeding . . . .’’ (Internal quotation
marks omitted.) Greene v. Commissioner of Correction, 131 Conn. App.
820, 822, 29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012);
see also Newsome v. Commissioner of Correction, 109 Conn. App. 159, 165
n.4, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008) (declining
to review petitioner’s arguments because habeas court did not address
arguments in memorandum of decision, and petitioner failed to file motion
for articulation).
It is evident that the habeas court construed the petitioner’s claim as an
allegation that his right to due process was violated ‘‘by the [trial] court’s
destruction of evidence in its custody’’ rather than by ‘‘the [trial] court’s
failure to adopt adequate procedures to avoid the destruction of evidence.’’
In rendering its decision, it found that the evidence presented at the habeas
trial showed that the destroyed knives were not material to the petitioner’s
case. It also relied on this court’s holding in State v. Santos, 146 Conn. App.
537, 549–52, 78 A.3d 230 (2013), aff’d, 318 Conn. 412, 121 A.3d 697 (2015),
in which we held that the petitioner was not entitled to a dismissal of the
charges against him or an adverse inference instruction on the basis of the
destruction of the knives because he failed to show that the unavailability
of the knives deprived him of due process of law. Because the petitioner
is essentially arguing a new claim on appeal, we will not review the merits
of his claim. See Davis v. Commissioner of Correction, 160 Conn. App.
444, 456, 124 A.3d 992 (‘‘to the extent that the habeas court construed the
petitioner’s allegations in a way that the petitioner deems inaccurate or
incomplete, the failure of the petitioner to clarify for the habeas court his
allegations is fatal to his claim’’), cert. denied, 319 Conn. 957, 125 A.3d
1012 (2015).
We also reject the petitioner’s argument that this claim was preserved
because he argued it in his posttrial brief to the habeas court before it
rendered its decision. ‘‘Claims raised for the first time in posttrial briefs are
not reviewable by the habeas court or by this court on appeal.’’ (Internal
quotation marks omitted.) Antwon W. v. Commissioner of Correction, 172
Conn. App. 843, 877, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d
680 (2017).
To the extent that the habeas court ruled on the claim presented in his
amended petition, we conclude that it did not abuse its discretion in denying
the petitioner’s certification to appeal because we agree with the habeas
court that he failed to show that the knives were material to his case and
would have supported a third-party culpability defense.
3
We refer to this individual by his initials because we discuss his privileged
psychiatric records.
4
The petitioner claimed in his direct appeal that ‘‘(1) his right to confront
an adverse witness was compromised by the trial court’s limitations on the
disclosure and use of [E.P.’s] psychiatric records, and (2) the [trial] court
erred by denying his motion to dismiss or, in the alternative, his request
for an adverse inference instruction, because purportedly material evidence
was unavailable.’’ Santos I, supra, 146 Conn. App. 539.
5
Our Supreme Court granted the petitioner’s petition for certification to
appeal limited to the following issue: ‘‘Did the Appellate Court properly
conclude that the [petitioner’s right] under the confrontation clause [was]
not violated by virtue of the trial court’s refusal to require disclosure of
certain psychiatric records of the eyewitness E.P.?’’ (Internal quotation
marks omitted.) Santos II, supra, 318 Conn. 415.
6
Stacey Miranda, formerly Stacey Haupt, prosecuted the petitioner’s crimi-
nal trial. She also handled E.P.’s guilty pleas, sentencing, and sentence
modification. Throughout this opinion, we will refer to Miranda as ‘‘the pros-
ecutor.’’
7
The day the habeas trial began, the petitioner indicated that he was
withdrawing count three, certain claims in count four, and count five of his
amended petition.
8
The petitioner argues on appeal that the prosecutor violated both his
state and his federal constitutional rights. Although it does not change our
analysis, we note that he failed to allege a state constitutional violation
claim in his amended petition.
9
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
10
E.P. also pleaded guilty under the Alford doctrine to conspiracy to
commit robbery in the first degree in violation of General Statutes §§ 53a-
48 and 53a-134 (a) (3) due to his participation in a robbery that took place
on February 1, 2007. The circumstances of the February 1, 2007 robbery
are not relevant to the present appeal.
11
In reference to the transcript of E.P.’s June 13, 2008 sentencing hearing,
Grogins asked E.P.: ‘‘So, do you deny that you were told by both the judge
and the prosecutor that you could have—you agree to have a sentence
modification hearing after you testified here in court today?’’ The prosecutor
objected on the ground that ‘‘it’s the [trial] court that was speaking, not the
prosecutor.’’ Outside the presence of the jury, after reviewing the transcript,
Grogins conceded that it was only Judge Damiani, and not the prosecutor,
who told E.P. that he may receive a sentence modification if he testified
against the petitioner.
12
The petitioner also alleged in his amended petition, and now claims on
appeal, that Grogins was ineffective in her representation of the petitioner
because she failed to adequately cross-examine, impeach, or otherwise chal-
lenge the testimony of E.P. In denying his ineffective assistance of counsel
claim, the habeas court did not address this claim and stated in its memoran-
dum of decision: ‘‘There are several areas of alleged deficient performance
identified by the petitioner, however, the only one that merits discussion
is the one that alleges that . . . Grogins failed to adequately prepare the
petitioner for his testimony.’’ It did not make any factual findings as to
whether Grogins’ cross-examination of E.P. amounted to ineffective assis-
tance of counsel or whether any alleged deficiencies in her cross-examina-
tion of E.P. prejudiced the petitioner. In his petition for certification to
appeal, the petitioner did not raise the claim that the habeas court improperly
failed to address this ineffective assistance of counsel claim. Instead, he
asserted that the habeas court ‘‘erred by finding that the petitioner’s right
to the effective assistance of counsel . . . was not violated,’’ ‘‘erred by
failing to find that the . . . performance [of the petitioner’s trial counsel]
was not deficient,’’ and ‘‘erred by failing to find that the petitioner was
prejudiced by his trial counsel’s deficient performance.’’ ‘‘This court has
declined to review issues in a petitioner’s habeas appeal in situations where
the habeas court denied certification to appeal, and the issues on appeal
had not been raised in the petition for certification.’’ Kowalyshyn v. Commis-
sioner of Correction, 155 Conn. App. 384, 389, 109 A.3d 963, cert. denied,
316 Conn. 909, 111 A.3d 883 (2015). Because the petitioner failed to raise
this claim in his petition for certification to appeal, we decline to review
it, as ‘‘[u]nder such circumstances, the petition for certification to appeal
could not have apprised the habeas court that the petitioner was seeking
certification to appeal based on such issues . . . [and] [a] review of such
claims would amount to an ambuscade of the [habeas] judge.’’ (Internal
quotation marks omitted.) Id., 390.