Diaz v. Comm'r of Corr.

152 Conn.App. 669

100 A.3d 856

Luis DIAZ

v.COMMISSIONER OF CORRECTION.

No. 34760.

Appellate Court of Connecticut.

Argued April 8, 2014.

Decided Sept. 9, 2014.

Michael Zariphes, assigned counsel, for the appellant (petitioner).

Adam E. Mattei, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Howard S. Stein, senior assistant state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and ALVORD and MINTZ, Js.

Opinion

ALVORD, J.

The petitioner, Luis Diaz, 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. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the court improperly (1) rejected his claim of ineffective assistance of trial counsel, and (2) concluded that he failed to prove that the state suppressed exculpatory evidence at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The petitioner also claims that the habeas court abused its discretion in denying his motion for rectification and request for an evidentiary hearing pursuant to State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000). We dismiss the petitioner's appeal.

The facts giving rise to this case are set forth in State v. Diaz, 302 Conn. 93, 25 A.3d 594 (2011). “On the evening of January 11, 2006, the victim, Philip Tate, was shot and killed outside a bar known as the Side Effect West in the city of Bridgeport. Thereafter, the [petitioner] was arrested and charged with murdering the victim [in violation of General Statutes § 53a–54a ], carrying a pistol without a permit [in violation of General Statutes § 29–35,] and criminal possession of a pistol or revolver [in violation of General Statutes § 53a–217c ]. In March, 2006, Corey McIntosh gave a statement to the police indicating that the [petitioner] had been the shooter. At that time, McIntosh was on federal probation and had received a three year suspended sentence for possessing narcotics in Connecticut. McIntosh testified at the [petitioner's] trial that he had seen the [petitioner] outside the Side Effect West immediately before the shooting and had heard shots as he entered the bar. He then ran out the back door and saw the [petitioner] running down the street with a gun in his hand. Additional state narcotics charges were pending against McIntosh at the time of trial. He testified that, while no promises had been made in connection with the pending charges, he was hoping to receive some consideration in exchange for his testimony.

“At some point after July, 2006, Eddie Ortiz wrote a letter to the prosecutor's office indicating that he had information about the murder. He was incarcerated at the time and stated in his letter that he was looking for some consideration in exchange for his testimony. Ortiz testified at the [petitioner's] trial that he had seen the [petitioner] shoot the victim. He also testified that, during the trial, he had been placed in the same holding cell as the [petitioner], who said to him, ‘You know what I did’ and ‘I know where you live at.’ In addition, Ortiz testified that the [petitioner] had offered him $5000 not to testify. He further testified that the prosecutor's office had not promised him anything in exchange for his testimony and that he had been told that it would be up to a judge whether he would receive any benefit, such as a sentence modification. He had expectations, however, that his testimony would be taken into consideration.¹

“Approximately six months after the murder, James Jefferson asked his attorney to inform Harold Dimbo, a detective with the Bridgeport police department, that Jefferson had information about the murder. Jefferson, who was incarcerated in Connecticut on domestic violence charges at the time, was subject to lifetime parole in New York in connection with a conviction on narcotics charges in that state. Dimbo visited Jefferson in prison and Jefferson agreed to give a statement about the shooting. Dimbo made no promises to Jefferson. In September, 2006, the domestic violence charges were dismissed for lack of evidence. Thereafter, Jefferson testified at the [petitioner's] trial that he had seen the [petitioner] and the victim outside Side Effect West immediately before the shooting. He also saw the [petitioner] shoot at someone, but he did not see the victim at that point. At the time of trial, Jefferson was incarcerated in Connecticut for violating his parole in New York.

“McIntosh, Ortiz and Jefferson were the only witnesses who identified or implicated the [petitioner] as the shooter. The [petitioner's] girlfriend, Shenisha McPhearson, testified that the [petitioner] had been with her at her apartment at the time of the shooting. The state presented no physical evidence to tie the [petitioner] to the shooting and the gun used in the shooting was never recovered.” (Footnotes omitted.) Id., at 95–97, 25 A.3d 594.

Following the trial, the jury returned a verdict of guilty on all three counts, and on June 8, 2007, the court sentenced the petitioner to seventy years incarceration. The petitioner appealed directly to our Supreme Court pursuant to General Statutes § 51–199(b)(3), and the court upheld the conviction. Id., at 93, 25 A.3d 594.

In April, 2012, the petitioner filed a third amended petition for a writ of habeas corpus, which included claims of ineffective assistance of trial counsel and substantive constitutional violations of the petitioner's due process rights under the state and federal constitutions and Brady v. Maryland, supra, 373 U.S. at 83, 83 S.Ct. 1194.² Following a three day evidentiary hearing, the habeas court denied the habeas petition on May 16, 2012, and subsequently denied the petitioner's petition for certification to appeal on May 30, 2012. The petitioner appealed to this court.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner's appeal. “Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court's permission.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court.” (Internal quotation marks omitted.) Patterson v. Commissioner of Correction, 150 Conn.App. 30, 34, 89 A.3d 1018 (2014). Having set forth the appropriate standard of review, we next consider each of the petitioner's claims.

I

The petitioner first claims that the habeas court improperly rejected his claim of ineffective assistance of his trial counsel. He argues that trial counsel rendered ineffective assistance by failing to investigate and present the testimony of Clifton Waiters, Jacqueline Cooper, and Eugene Browne, who would have “injected a great deal of reasonable doubt as to the petitioner being the perpetrator of the charged crimes.”³ We are not persuaded.

“In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States

Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable.... A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Citation omitted; internal quotation marks omitted.) Ramey v. Commissioner of Correction, 150 Conn.App. 205, 209–210, 90 A.3d 344 (2014).

In his petition for a writ of habeas corpus, the petitioner identified Waiters, Cooper, and Browne as “third party culpability witness[es].” It is well established that “a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged.... The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged.... It is not enough to show that another had the motive to commit the crime ... nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Emphasis omitted; internal quotation marks omitted.) State v. Galarza, 97 Conn.App. 444, 464, 906 A.2d 685, cert. denied, 280 Conn. 936, 909 A.2d 962 (2006).

In rejecting the petitioner's ineffective assistance of counsel and third party culpability claim, the habeas court found that “the evidence presented here clearly indicates that there was no ... direct connection to any third party.” The court considered the testimony of each of the three witnesses⁴ before concluding that trial counsel was not deficient by failing to present that evidence, and that it...