Vega v. Comm'r of Corr.

312 A.3d 1142

224 Conn.App. 652

Miguel VEGA

v.COMMISSIONER OF CORRECTION

(AC 46077)

Appellate Court of Connecticut.

Argued February 8, 2024

Officially Released April 9, 2024

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

Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Paul J. Narducci, state’s attorney, and Donna Fusco, deputy assistant state’s attorney, for the appellee (respondent).

Moll, Clark and Eveleigh, Js.

EVELEIGH, J.

₆₅₄The petitioner, Miguel Vega, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) ₆₅₅improperly concluded that he failed to prove that the state had suppressed exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and (3) improperly concluded that he failed to establish that his trial counsel rendered ineffective assistance. Because the petitioner has failed to demonstrate that the court improperly denied his petition for certification to appeal, we dismiss the appeal.

The facts underlying the petitioner’s conviction were recounted in the decision of this court on direct appeal in State v. Vega, 181 Conn. App. 456, 187 A.3d 424, cert. denied, 330 Conn. 928, 194 A.3d 777 (2018), and can be summarized for our purposes as follows. On the night of March 2, 2010, Michael Ellis, Jr. (Ellis), Altareika Parrish, Rahmel Perry, Shariymah James, Alice Phillips, Keyireh Kirkwood, and others gathered in a New London apartment. Id., at 459, 187 A.3d 424. In the early morning of March 3, 2010, some individuals from the group went to a bar where the petitioner and a few of his associates were also present. Id. The petitioner motioned to Ellis to step away from Kirkwood, with whom the petitioner had a child. Id., at 459-60, 187 A.3d 424. When Ellis did not do so, the petitioner approached Ellis and punched him in the face. Id., at 460, 187 A.3d 424. A fight then broke out in the bar between the two groups, during which Perry began punching and kicking the petitioner, who was on the losing end of the fight. Id. Outside of the bar, another altercation ensued between the two groups, which was quickly broken up. Id.

After both groups left the bar, Ellis, Perry, Parrish, Kirkwood, Phillips, and James returned to the New London apartment at approximately 1:30 a.m. Id. Shauntay Ellis was also present in the apartment when the group returned. Id. At approximately 2 a.m., the petitioner and another man entered the apartment. Id. Both men were armed, were dressed in all black clothing, and ₆₅₆had their heads and faces covered. Id. The petitioner proceeded directly to the living room where Ellis and Perry were located. Id. He pulled down his mask and ordered everyone in the room to get on the floor. Id. The petitioner then fired toward the window, in Ellis’ direction, but did not hit Ellis. Id. He then fired two shots at Perry, who was on the couch, striking him. Id. Meanwhile, Ellis ran out of the living room and toward the back door where the men had entered. Id. The intruders left the apartment and chased Ellis, filing approximately four shots and striking Ellis twice. Id., at 461, 187 A.3d 424. At the apartment, Phillips called 911 and stated that Perry had been shot. Id. After being transported to the hospital, Perry succumbed to his injuries and Ellis survived. Id. After the police arrived on the scene, several people who were present during the shooting identified the petitioner as one of the shooters. Id.

In connection with these events, the petitioner was charged and convicted, following a jury trial in 2016,¹ of murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (2), burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). Id., at 402-63, 187 A.3d 424. He was sentenced to a total effective term of seventy-five years of imprisonment. Id., at 463, 187 A.3d 424. His conviction was affirmed on direct appeal. Id., at 492, 187 A.3d 424.

In 2018, the petitioner filed a petition for a writ of habeas corpus, which he later amended. He alleged in ₆₅₇his amended petition, among other things, that his rights to due process and a fair trial were violated by the state’s alleged failure to disclose material exculpatory evidence and that his trial counsel rendered ineffective assistance at his criminal trial. The court denied his petition. Thereafter, the petitioner filed a petition for certification to appeal. After the court denied the petition for certification to appeal, this appeal followed. Additional facts will be set forth as necessary in the context of the petitioner’s claims.

I

The petitioner first claims that the court abused its discretion by denying his petition for certification to appeal. We disagree.

[1–3] We first set forth certain legal principles that guide us in our review. "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…. 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…. 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 the habeas court reasonably determined that the petitioner’s appeal was frivolous. ₆₅₈In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria … adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification." (Internal quotation marks omitted.) Howard v. Commissioner of Correction, 217 Conn. App. 119, 124-25, 287 A.3d 602 (2022). As we discuss more fully in parts II and III of this opinion, because the resolution of the petitioner’s underlying claims involve issues that are not debatable among jurists of reason, could not have been resolved by a court in a different manner, and are not adequate to deserve encouragement to proceed further, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal from the denial of the petition for a writ of habeas corpus.

II

The petitioner claims that the court improperly determined that he was not deprived of his rights to due process and to a fair trial in violation of Brady v. Maryland, supra, 373 U.S. 83, 83 S.Ct. 1194. Specifically, he contends that the state failed to disclose that Phillips, who testi- fied for the state in the petitioner’s criminal trial, had testified falsely in the prior unrelated 2009 trial of Kurtis Turner. He does not claim that Phillips testified falsely in his criminal trial but argues that "it is clear that the state was on notice that exculpatory impeachment evidence existed in 2009. It is clear from the record that it was not disclosed to the defense. As a result, the habeas court erred in finding that the state did not suppress evidence by failing to tell the defense about Phillips’ 2009 false testimony." We disagree.

[4–6] "The fourteenth amendment to the United States constitution demands that [n]o [s]tate shall … deprive any person of life, liberty, or property, without due ₆₅₉process of law …. Due process principles require the prosecution to disclose to the defense evidence that is favorable to the defendant and material to his guilt or punishment…. In order to obtain a new trial for improper suppression of evidence, the petitioner must establish three essential components: (1) that the evidence was favorable to the accused; (2) that the evidence was suppressed by the state—either inadvertently or wilfully; and (3) that the evidence was material to the case, i.e., that the accused was prejudiced by the lack of disclosure." (Citations omitted; internal quotation marks omitted.) Marquez v. Commissioner of Correction, 330 Conn. 575, 591-92, 198 A.3d 562 (2019). "Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review." Walker v. Commissioner of Correction, 103 Conn. App. 485, 491, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

In Turner v. Commissioner of Correction, 181 Conn. App. 743, 187 A.3d 1163 (2018), this court held that the state’s failure to correct the false testimony of Phillips that she did not expect any consideration for her testimony in the 2009 criminal trial of Kurtis Turner violated Turner’s due process rights to a fair trial under Brady. See id., at 747, 753-58, 187 A.3d 1163. At the habeas trial in the present case, Attorney Michael Regan, who was the prosecutor in the petitioner’s...