Delgado v. Comm'r of Corr.

311 A.3d 740

224 Conn.App. 283

Melvin DELGADO

v.COMMISSIONER OF CORRECTION

(AC 45982)

Appellate Court of Connecticut.

Argued November 14, 2023

Officially Released March 19, 2024

Robert L. O’Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

Brett R. Aiello, assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).

Moll, Clark and Seeley, Js.

MOLL, J.

₂₈₅The petitioner, Melvin Delgado, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his criminal trial counsel, Attorney Kimberly Graham, and his appellate counsel, Attorney Theresa M. Dalton, did not render ineffective assistance during the criminal proceedings underlying his conviction or in the direct appeal from his conviction, respectively, a conclusion that necessarily defeated the petitioner’s claims of ineffective assistance of counsel directed at his second habeas counsel, Attorney Laljeebhai R. Patel. We disagree and, accordingly, affirm the judgment of the habeas court.

₂₈₆The following facts, as set forth by our Supreme Court in the petitioner’s direct appeal from his criminal conviction; see State v. Delgado, 247 Conn. 616, 725 A.2d 306 (1999); or as undisputed in the record, and procedural history are relevant to our resolution of this appeal. "On the evening of December 20, 1994, the [petitioner], a member of the Los Solidos street gang, was socializing with friends at a party in an apartment in Hartford’s Dutch Point housing project (Dutch Point). A fellow Los Solidos gang member, identified only by the nickname ‘Cheesecake,’ also was present at the party. Late in the evening, the [petitioner], who was carrying a nine millimeter pistol, left the party and went to meet Cheesecake at a nearby store located at 63 Norwich Street. Cheesecake was armed with a .38 caliber revolver."

"Shortly after midnight, while he was walking from Dutch Point to the store, the [petitioner] encountered the victim, Anthony Battle, near the intersection of Stonington and Norwich Streets. The [petitioner] recognized the victim as a member of Twenty Love, a rival gang with which the Los Solidos gang was at war. The [petitioner] approached the victim from the Stonington Street side of the intersection, and the two men engaged in a heated argument. The [petitioner], who at this time was approximately fifteen to twenty feet from the victim, drew his pistol and began firing at the victim. While the [petitioner] was shooting at the victim, Cheesecake, who was standing at the Norwich Street side of the intersection, also opened fire on the victim. The [petitioner] and Cheesecake continued to shoot at the victim as he attempted to flee. After firing thirteen rounds, the [petitioner] watched as the wounded victim climbed a fence and escaped into a nearby park. Thereafter, the [petitioner] and Cheesecake left the scene separately.

"Within minutes, two Hartford police officers arrived at the scene of the shooting and found the victim lying on the ground in intense pain. He had been shot twice, ₂₈₇once in the back of the right leg and once in the back of the right arm. The victim told the officers that he had been shot by members of Los Solidos and that at least one of the shooters was Hispanic. The victim was transported to Hartford Hospital, where he subsequently died from loss of blood caused by his gunshot wounds." Id., at 619-20, 725 A.2d 306.

The petitioner subsequently was arrested and charged with murder in violation of General Statutes § 53a-54a¹ and with possession of a firearm during the commission of a class A, B or C felony in violation of General Statutes § 53-202k.² Following a jury trial, during which the petitioner was represented by Graham, the petitioner was convicted of being an accessory to murder in violation of General Statutes §§ 53a-8³ and 53a-54a, and of possession of a firearm during the commission of a class A, B or C felony in violation of § 53-202k. See id., at 618, 725 A.2d 306. The petitioner was sentenced to a ₂₈₈total effective sentence of sixty-five years of imprisonment. Id., at 634, 725 A.2d 306. Thereafter, the petitioner, represented by Dalton, appealed from the judgment of conviction directly to our Supreme Court pursuant to General Statutes (Rev. to 1997) § 51-199 (b). Id., at 618, 725 A.2d 306 n.3. On direct appeal, our Supreme Court affirmed the judgment of conviction as to the accessory to murder charge but vacated the judgment of conviction with respect to the firearm charge to reflect the fact that § 53-202k does not constitute a separate offense.⁴ See id., at 634, 725 A.2d 306.

In 2004, following the disposition of his direct appeal, the petitioner commenced his first habeas action, in which he was represented by Attorney Robert J. McKay (first habeas counsel). In an amended petition for a writ of habeas corpus dated February 9, 2007, the petitioner asserted, inter alia, that Graham and Dalton had rendered ineffective assistance as criminal trial counsel and appellate counsel on direct appeal, respectively. Following a trial, the habeas court, Fuger, J., denied the amended habeas petition. Upon the habeas court’s denial of certification to appeal from the judgment denying his amended habeas petition, the petitioner appealed to this court, which dismissed the appeal. See Delgado v. Commissioner of Correction, 114 Conn. App. 609, 618, 970 A.2d 792, cert. denied, 292 Conn. 920, 974 A.2d 721 (2009).

In 2009, the petitioner commenced a second habeas action. In an amended petition for a writ of habeas corpus dated March 22, 2011, the petitioner, represented by Patel, asserted that McKay had rendered ineffective assistance as prior habeas counsel. Following a trial, the habeas court, Bright, J., denied the amended habeas petition and the ensuing petition for certification ₂₈₉to appeal, whereupon the petitioner, on July 25, 2011, appealed to this court. On March 19, 2014, this court dismissed the appeal. See Delgado v. Commissioner of Correction, Connecticut Appellate Court, Docket No. AC 33706 (appeal dismissed March 19, 2014).

Meanwhile, in 2013, during the pendency of the appeal from the judgment rendered in the second habeas action, the petitioner commenced a third habeas action, which underlies the present appeal. In an amended petition for a writ of habeas corpus dated July 10, 2020 (operative petition), the petitioner asserted four counts of ineffective assistance of counsel, of which only counts one, three, and four are relevant to this appeal.⁵ In counts one and three, the petitioner alleged that Patel had rendered ineffective assistance by failing to raise claims of ineffective assistance against McKay for failing to assert certain claims that Graham had rendered ineffective assistance during the criminal trial. Specifically, the petitioner alleged that Graham had rendered ineffective assistance because she failed (1) to request a self-defense jury instruction and (2) to object to an erroneous intent instruction articulated by the trial court on the murder charge. In count four, the petitioner alleged that Patel had rendered ineffective assistance by failing to raise the claim that McKay had rendered ineffective assistance when he failed to assert that Dalton had rendered ineffective assistance on direct appeal by failing to raise the issue of the erroneous intent instruction. The respondent, the Commissioner of Correction, filed a return and various special defenses.

₂₉₀The matter was tried to the habeas court, Oliver, J., on June 7, 2021, and April 28, 2022. The court admitted various exhibits, including copies of transcripts from the petitioner’s criminal trial, and heard testimony from witnesses, including Patel, McKay, Graham, Dalton, and Attorney John R. Gulash, the petitioner’s legal expert.

On September 14, 2022, the court issued a memorandum of decision denying the petitioner’s operative petition. In addressing the issue of the self-defense instruction vis-à-vis count one, the court concluded that the petitioner had failed to prove that Graham’s performance was deficient under the first part of the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Regarding the issue of the intent instruction raised in count three, although the court found that Graham had rendered deficient performance by failing to object to that instruction, it concluded that the petitioner had not satisfied the second part of the Strickland test by establishing that he was prejudiced as a result of Graham’s deficient performance. With regard to count four, predicated on the allegation that Dalton had rendered ineffective assistance on direct appeal by failing to claim that the trial court’s jury instruction on intent was improper, the habeas court determined that the petitioner had failed to satisfy either the performance prong or the prejudice prong under Strickland. As the court further explained, its conclusions that Graham and Dalton did not render ineffective assistance were dispositive of the claims against Patel set forth in counts one, three, and four. Thereafter, the petitioner filed a petition for certification to appeal, which the court granted. This appeal followed. Additional facts and procedural history will be set forth as necessary.

[1,2] Before turning to the petitioner’s claims, we set forth the well settled standard of review governing challenges ₂₉₁to a habeas court’s judgment on ineffective assistance of counsel claims. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our...