Diaz v. Comm'r of Corr.

214 Conn.App. 199

280 A.3d 526

Raul Ivan DIAZ

v.COMMISSIONER OF CORRECTION

AC 44504

Appellate Court of Connecticut.

Argued February 3, 2022

Officially released August 2, 2022

James E. Mortimer, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, former state's attorney, C. Robert Satti, Jr., supervisory assistant state's attorney, and Emily Dewey Trudeau, assistant state's attorney, for the appellee (respondent).

Moll, Cradle and Clark, Js.

CRADLE, J.

The petitioner, Raul Ivan Diaz, appeals from the judgment of the habeas court dismissing in part and denying in part his fourth petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court erred in rejecting his claims that (1) his right to due process was violated when the court in his underlying criminal trial failed to instruct the jury on the requirement of unanimity in its verdict, and (2) he was denied effective assistance by his trial counsel, his first habeas counsel and his second habeas counsel. We affirm the judgment of the habeas court as to the petitioner's claims as to his second habeas counsel. We dismiss the appeal as to the petitioner's remaining claims.

Our Supreme Court set forth the following facts in its decision affirming the judgment of conviction on the petitioner's direct appeal. "On the evening of June 26, 1991, Hector Gonzalez (Gonzalez) and his wife, Valerie Falcon, drove to Seaside Park in Bridgeport with their two year old son, Hector Gonzalez, Jr., and Falcon's eight year old son, William Guisti, Jr. While at the park, they met Fitzgerald Guisti (Guisti), an uncle of William Guisti, Jr. Guisti informed Gonzalez and Falcon that he was planning to drive to the east side of Bridgeport to purchase some marijuana. Gonzalez and Falcon agreed to follow Guisti in their vehicle, a Ford Bronco. The two vehicles then left the park. Gonzalez, accompanied by Falcon in the front seat and the two children in the back seat, drove the Bronco, while Guisti drove alone in his car.

"Guisti, followed by Gonzalez and his three passengers in the Bronco, proceeded to the corner of Hallett and Jane Streets where several men, including Gerald Torres, Sammy Segarra, Juan Rivera, a man identified only as ‘Edgar’ and the defendant, were congregated. Guisti pulled his car over to the side of the road to inquire whether any of the men had marijuana for sale. Gonzalez drove the Bronco past Guisti's vehicle and continued down Jane Street toward Helen Street.

"Torres, in response to Guisti's inquiry, stated that he had some marijuana and told Guisti to get out of his car. As Guisti was exiting his automobile, he heard Torres yell, ‘that's the truck, let's do the truck,’ an apparent reference to the Bronco, which had just passed by and was proceeding down Jane Street toward Helen Street. Meanwhile, Gonzalez had turned the Bronco around on Helen Street and was traveling back toward Jane Street in the direction of Guisti's vehicle. Torres, Segarra, Rivera, Edgar and the defendant hurriedly retrieved guns from a nearby automobile and hid behind several cars parked on the street to await Gonzalez’ return.

"As Gonzalez approached and passed the parked cars behind which they were hiding, the men ran out into the street and began shooting at the Bronco. One member of the group was armed with an Uzi-type machine gun and the others were carrying handguns. Guisti yelled to the group that there was a child in the Bronco, to which Torres replied, ‘Fuck it, keep on,’ and the shooting continued. The men fired about thirty-five to forty shots at the Bronco ... approximately ten of which actually struck the vehicle. Three of the bullets passed through the passenger compartment of the Bronco and exited through the front windshield. William Guisti, Jr., was fatally injured when a 9 millimeter bullet passed through his heart, lung and liver." (Footnotes omitted.) State v. Diaz , 237 Conn. 518, 521–23, 679 A.2d 902 (1996).

Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), two counts of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and he received a total effective sentence of 105 years of incarceration. His conviction was affirmed on direct appeal. Id., at 520–21, 679 A.2d 902 and n.6.

In February, 1997, the petitioner filed his first habeas corpus action, in which he alleged that his trial counsel, Michael Fitzpatrick, and his appellate counsel, Kent Drager, rendered ineffective assistance. Attorney Joseph Visone represented the petitioner in that action. The habeas court rendered judgment dismissing the petition, and this court dismissed the petitioner's appeal from that judgment. See Diaz v. Commissioner of Correction , 92 Conn. App. 533, 886 A.2d 460 (2005), cert. denied, 277 Conn. 905, 894 A.2d 986 (2006).

In February, 2004, the petitioner filed a second habeas action, in which he challenged his criminal conviction on the grounds that his constitutional right to a unanimous verdict was violated and that the trial court improperly refused to poll the jury. Attorney Genevieve P. Salvatore represented the petitioner in that habeas action. The petitioner and the respondent, the Commissioner of Correction, filed motions for summary judgment as to whether an amendment to the rule of practice pertaining to jury polling applied retroactively to the petitioner's case. See Practice Book § 42-31. The habeas court concluded that it did not and rendered judgment dismissing the petition. See Diaz v. Warden , Superior Court, judicial district of Tolland, Docket No. CV-04-0004379 (October 18, 2006). The petitioner took no appeal from the judgment of the second habeas court.

In May, 2007, the petitioner filed a third habeas action, and Attorney Cheryl Juniewic was appointed to represent him. In that action, the petitioner reiterated his claim that he was deprived of his constitutional right to a unanimous verdict and again attacked the adequacy of the representation provided by Fitzpatrick, Drager, Visone and Salvatore. Approximately one week prior to trial, however, the petitioner withdrew his petition.

On February 4, 2011, the petitioner filed this action, his fourth habeas petition. In his amended petition, the petitioner repeats his claims of ineffective assistance by Fitzpatrick, Visone and Salvatore.² He also reasserts his claim that his right to due process was violated when the court in his underlying criminal trial failed to instruct the jury on the requirement of unanimity for its verdict. On March 20, 2013, the respondent filed his return, admitting in part and denying in part the allegations set forth in the amended petition. On May 30, 2013, the matter was tried to the habeas court, Sferrazza, J . On August 14, 2013, the habeas court, sua sponte, dismissed the entire petition on the ground that the court was deprived of subject matter jurisdiction because the petition consisted of claims that had been deliberately bypassed as a result of the petitioner's withdrawal of his third habeas petition. This court reversed the judgment of dismissal and remanded the case to the habeas court for further proceedings. See Diaz v. Commissioner of Correction , 157 Conn. App. 701, 702–703, 117 A.3d 1003 (2015), appeal dismissed, 326 Conn. 419, 165 A.3d 147 (2017).

On October 28, 2019, the petitioner's claims were again tried to the habeas court, Chaplin, J .³ The habeas court filed a memorandum of decision on September 4, 2020, dismissing the petitioner's claims of ineffective assistance as to Salvatore and denying the remainder of his claims. On September 10, 2020, the petitioner filed a motion to open the judgment with respect to his claims regarding Salvatore. The habeas court denied that motion. The habeas court thereafter granted certification to appeal as to its dismissal of the petitioner's claims of ineffective assistance as to Salvatore and denied certification to appeal as to the petitioner's remaining claims. This appeal followed. Additional facts will be set forth as necessary.

Our analysis of the petitioner's claims on appeal is guided by the following principles. General Statutes § 52-470 (g) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies."

"Our Supreme Court has explained that one of the goals of this statute is to limit the number of appeals filed in criminal cases and to hasten the conclusion of the criminal justice process. ... Additionally, § 52-470 [g] acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal. ...

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he 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 decision of the habeas court should be reversed on its...