Soto v. Comm'r of Corr.

215 Conn.App. 113

281 A.3d 1189

Luis SOTO

v.COMMISSIONER OF CORRECTION

AC 43289

Appellate Court of Connecticut.

Argued February 8, 2021

Officially released September 13, 2022

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

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Cornelius Kelly, supervisory assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Elgo and Alexander, Js.

ELGO, J.

The petitioner, Luis Soto, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus alleging ineffective assistance of trial counsel. On appeal, the petitioner claims that the court improperly rejected his claim that trial counsel rendered ineffective assistance (1) during pretrial proceedings and (2) by failing to investigate and present the testimony of a confidential informant at trial. We affirm the judgment of the habeas court.

The following facts are relevant to our resolution of the petitioner's claims. "On June 11, 2014, at approximately 5 a.m., police officers with the Statewide Urban Violence Cooperative Crime Control Task Force (task force) executed a search warrant on the second floor apartment at 217 Hough Avenue in Bridgeport. The task force had obtained the warrant on the basis of a confidential informant's tip that Francisco Pineiro, the [petitioner's] cousin, was in possession of a black semiautomatic handgun. When the task force officers applied for the warrant, they believed that, in addition to Pineiro, Christina Jimenez and her two children resided at the apartment.

"Upon entering the apartment, task force officers encountered Pineiro, Jimenez, two children aged ten and five, and the [petitioner]. Some of the task force officers detained the apartment's occupants in the kitchen while other officers searched the apartment. The apartment had three bedrooms, one of which eventually was determined to be the [petitioner's]. In the closet of that bedroom, Detective David Edwards found a leather backpack containing a bag of cocaine, three loose .40 caliber rounds, and a semiautomatic pistol that was fully loaded with twelve rounds. The task force officers eventually determined that the pistol had been stolen several years earlier. Edwards also found the [petitioner's] state identification card on a television stand in that bedroom and some clothes hanging in the bedroom closet.

"While being detained in the kitchen, the [petitioner] became aware that task force officers [had] found a pistol in the bedroom. At that point, Officer Ilidio Pereira, who was detaining the apartment's occupants in the kitchen, overheard the [petitioner] ask Pineiro in Spanish, ‘quién va a tomar,’ which means ‘who's going to take it.’

"After recovering the pistol, Edwards questioned Pineiro, Jimenez, and the [petitioner] about the pistol. Both Pineiro and Jimenez denied possession and knowledge of the pistol. Additionally, Jimenez was ‘genuinely concerned and shocked’ about the pistol's presence in the apartment and ‘placed the blame’ on the [petitioner] for the pistol. The [petitioner], who was a convicted felon, stated that the pistol was not his, that he had never seen it before, and that he did not know to whom it belonged. The [petitioner] did indicate, however, that he was staying in that bedroom, that the clothes hanging in the closet belonged to him, and that he had been ‘in and out of the closet multiple times.’

"As a result of the search and questioning of the apartment's occupants, task force officers arrested the [petitioner] on several gun and drug offenses. The state charged the [petitioner] with stealing a firearm in violation of General Statutes § 53a-212 (a), criminal possession of a pistol in violation of [General Statutes] § 53a-217c (a) (1), possession of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-279 (b), and risk of injury to a child in violation of [General Statutes] § 53-21 (a) (1). The [petitioner] elected a jury trial.

"At trial, the state sought to establish that the [petitioner] constructively possessed the pistol, ammunition, and cocaine seized from Pineiro's apartment. Specifically, it sought to link the [petitioner] to those items with statements he had made to Pineiro and to task force officers at Pineiro's apartment. The [petitioner's] statements were introduced through the testimony of several task force officers who had participated in executing the warrant at Pineiro's apartment. In particular, those officers testified that the [petitioner] asked Pineiro ‘who's going to take it’ in reference to the pistol, that he indicated that he was staying in the bedroom in which the items were found, that he stated that the clothes hanging in the closet belonged to him, and that he admitted that he had been ‘in and out of the closet multiple times.’

"In an effort to refute the officers’ testimony with his own version of the events as to what had transpired at Pineiro's apartment, the [petitioner] testified on his own behalf. The [petitioner's] decision to do so rendered this case, in large part, a credibility contest between the [petitioner] and the task force officers. The thrust of the [petitioner's] testimony was a blanket denial of the inculpatory statements the task force officers alleged he had made, including his asking Pineiro ‘who's going to take it’ with respect to the pistol that the officers had discovered.

"Furthermore, the [petitioner] denied that the officers asked him whether he had been staying in the bedroom in which the pistol was found, whether the backpack in which the pistol was stored belonged to him, whether the cocaine stored in the backpack belonged to him, and whether the clothes in the bedroom belonged to him. According to the [petitioner], the only question the officers asked him was if the gun belonged to him. The [petitioner] testified that, in response to that question, he stated ‘that's not my gun, I never saw it.’

"The jury found the [petitioner] guilty of criminal possession of a pistol and risk of injury to a child, but not guilty of stealing a firearm and possession of a controlled substance within 1500 feet of a school." State v. Soto , 175 Conn. App. 739, 741–43, 168 A.3d 605, cert. denied, 327 Conn. 970, 173 A.3d 953 (2017). The trial court rendered judgment accordingly and sentenced the petitioner to a term of twelve years of incarceration. Id., at 744, 168 A.3d 605. This court affirmed that judgment of conviction on direct appeal. Id., at 757, 168 A.3d 605.

On June 9, 2016, the petitioner filed a petition for a writ of habeas corpus, alleging that his trial counsel, Attorney Andre Cayo, rendered ineffective assistance,¹ inter alia, because he failed (1) "to meaningfully convey one or more plea offers to the petitioner" and (2) "to adequately investigate, identify and compel the attendance of the state's confidential informant ...."² A habeas trial was held on March 6 and 11, 2019. On June 19, 2019, the court issued a memorandum of decision denying the petitioner's writ of habeas corpus. Thereafter, the habeas court granted the petition for certification to appeal, and this appeal followed.

Before considering the petitioner's specific claims, we first note the well established precepts that govern our review. "Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. ...

"In Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. ... That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary process that renders the result unreliable. ... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong. ...

"To satisfy the performance prong of the Strickland test, the petitioner must demonstrate that his attorney's representation was not reasonably 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; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. ...

"With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. ... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Wargo v. Commissioner of Correction , 144 Conn. App. 695, 700–702, 73 A.3d 821 (2013), appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015).

"It is axiomatic that courts may...