Santos v. Comm'r of Corr.

176 Conn.App. 788

171 A.3d 1091

Richard SANTOS

v.COMMISSIONER OF CORRECTION

AC 38803

Appellate Court of Connecticut.

Argued May 23, 2017

Officially released October 3, 2017

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 attorney, for the appellee (respondent).

Lavine, Sheldon and Harper, Js.

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 discretion 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 barricaded the door. The [petitioner] pulled a folding knife that he frequently carried and began attacking [the victim], 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 [petitioner] 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 [petitioner] 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 Statutes § 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 individuals 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 [petitioner] 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 quotation 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 petition 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 constitutional 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 counsel, 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 petitioner's claim that the habeas court abused its discretion 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 decision 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 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.... In determining whether the habeas court abused its discretion in denying the petitioner'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 Correction, 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. Commissioner 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 knowingly present the false or misleading testimony of E.P., and that, regardless, the state presented sufficient evidence to convict the petitioner without E.P.'s testimony.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 resolving 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, Damiani, J., under the Alford doctrine⁹ to aiding and abetting assault in...