Ayuso v. Comm'r of Corr.

• Decision Date: 20 September 2022
• Docket Number: AC 43985
• Citation: 282 A.3d 983,215 Conn. App. 322
• Parties: Jose AYUSO v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

215 Conn.App. 322

282 A.3d 983

Jose AYUSO

v.COMMISSIONER OF CORRECTION

AC 43985

Appellate Court of Connecticut.

Argued November 9, 2021

Officially Released September 20, 2022

Michael W. Brown, assigned counsel, West Hartford, for the appellant(petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Tamara A. Grosso, former assistant state's attorney, for the appellee(respondent).

Moll, Alexander and Suarez, Js.

SUAREZ, J.

The petitioner, Jose Ayuso, 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 court abused its discretion in denying his petition for certification to appeal because (1)the prosecutor's presentation of false or misleading testimony at his criminal trial violated his due process right to a fair trial, (2) his trial counsel's performance was deficient and deprived him of his right to the effective assistance of trial counsel, (3) his appellate counsel's performance was deficient and deprived him of his right to the effective assistance of appellate counsel, and (4) the habeas court committed an evidentiary error that entitles him to a new habeas trial.We dismiss the appeal.

The following facts and procedural history are relevant to the claims raised on appeal.Following a jury trial in 2004, the petitioner was convicted of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(5), one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2)and53a-59 (a)(5), one count of carrying a pistol without a permit in violation of General Statutes § 29-35, and one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1).¹This court previously has summarized the facts the jury reasonably could have found: "On June 5, 2003, at approximately 1 a.m., Officers Tishay Johnson and Victor Otero and Sergeant Gerry Pleasant of the Hartford [P]olice [D]epartment were working undercover to target street crimes in Hartford and were patrolling the city in an unmarked, two door Toyota Tercel.At that time, the undercover officers received a radio dispatch, directing them to investigate the 500 block of Zion Street for loitering and narcotics sales.Johnson then drove northbound on Zion Street, turning right onto Park Street.Johnson entered a driveway located between 835 and 853 Park Street and parked the vehicle in the rear parking lot.After Johnson parked the vehicle, the [petitioner], who had been standing underneath a nearby tree, approached the driver's side of the vehicle.Pleasant immediately recognized the [petitioner] from previous encounters.Johnson rolled down the window, and the [petitioner] asked Johnson what he needed.In response, Johnson asked the [petitioner] what he had.

"The [petitioner] then looked inside the vehicle at Otero, who was sitting in the backseat, and at Pleasant, who was sitting in the front passenger seat, and then stepped away from the vehicle.Pleasant and Johnson, who still were seated in the front seat, heard the [petitioner] load his gun, which was a .40 caliber Glock semiautomatic handgun.Johnson also observed the [petitioner] point the gun at him.As Johnson was exiting the vehicle, the [petitioner] fired two gunshots in Johnson's direction, one of which struck the bulletproof vest that Johnson was wearing underneath his clothes.The [petitioner] continued to shoot as he moved away from the vehicle, and the officers also fired their .45 caliber semiautomatic handguns.During this time, the [petitioner] shot Otero several times.Johnson briefly chased the [petitioner] down Park Street; however, Johnson returned to the parking lot after exhausting his supply of ammunition.Pleasant then notified the police dispatcher of the situation, providing a description of the [petitioner], and requested an ambulance.Johnson, who was experiencing pain in his ribs, and Otero, who was bleeding from his abdomen, lay on the ground and waited to be taken to a hospital.

"Although the [petitioner] had sought refuge in a nearby apartment building on Mortson Street, responding officers, having been informed of the [petitioner's] whereabouts by a resident of the apartment building, eventually located and arrested him.The police also located the [petitioner's] .40 caliber Glock handgun in an apartment on Mortson Street.The [petitioner] later was brought to the hospital so that the officers could identify him.Johnson made a positive identification of the [petitioner]."State v. Ayuso , 105 Conn. App. 305, 307–308, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983(2008).During his criminal trial, the petitioner was represented by Attorneys Jeffrey Kestenband and William Paetzold.In 2005, the trial court, Mullarkey, J ., imposed a total effective sentence of forty-one years of imprisonment, with a two year mandatory minimum to serve.

Following his conviction, the petitioner brought a direct appeal to this court, which affirmed the judgment of conviction.Seeid., at 305, 937 A.2d 1211.Later, our Supreme Court denied the petitioner's petition for certification to appeal.SeeState v. Ayuso , 286 Conn. 911, 944 A.2d 983(2008).The petitioner's appellate counsel was Stephanie L. Evans.

The petitioner had brought a prior action for a writ of habeas corpus, which was dismissed for failure to prosecute.This court dismissed the petitioner's subsequent appeal from the judgment rendered by the habeas court in the prior habeas action.SeeAyuso v. Commissioner of Correction , 146 Conn. App. 906, 77 A.3d 216, cert. denied, 310 Conn. 961, 82 A.3d 628(2013).

On July 8, 2014, the petitioner commenced the underlying action for a writ of habeas corpus.By way of his amended petition dated November 14, 2018, the petitioner, represented by counsel, alleged in count one that the prosecutor at his criminal trial violated his due process right to a fair trial by knowingly presenting and failing to correct false testimony that affected the outcome of the trial.Specifically, the petitioner alleged that Pleasant "falsely testified that Johnson was shot by the petitioner on June 5, 2003, with a bullet that was lodged in or otherwise damaged Johnson's bulletproof vest and that Pleasant witnessed damage to the vest shortly after the shooting."In count two, the petitioner alleged that the prosecutor violated his due process right to a fair trial by failing to disclose favorable evidence to the defense, namely, "that [Johnson's] gun holster, which he was wearing on his right side at the time of the shooting, was damaged by a bullet."The petitioner alleged that, if this evidence had been disclosed to the defense in time for it to have been relied on at the time of trial, "the result of the petitioner's criminal trial would have been different and more favorable to the petitioner."In count three, the petitioner alleged that he did not receive the effective assistance of counsel in connection with his criminal trial and that, but for counsel's deficient performance, the outcome of the trial would have been different and more favorable to him.In count four, the petitioner alleged that he did not receive the effective assistance of counsel in connection with his direct appeal and that, but for appellate counsel's deficient performance, the outcome of the appeal would have been different and more favorable to him.In count five, the petitioner alleged that he was deprived of the effective assistance of counsel in connection with his prior habeas action and that, but for habeas counsel's deficient performance, the outcome of the action would have been different and more favorable to him.

The respondent, the Commissioner of Correction, filed a return in which he denied the substantive allegations in each count of the petition.With respect to the first and second counts of the petition, the respondent alleged the special defense of procedural default.With respect to counts three and four, the respondent alleged that the allegations therein "fail to state claims upon which relief can be granted, present the same grounds as a previously denied/dismissed petition and fail to state facts or to proffer new evidence not available at the time of the prior petition, are successive in nature, and must be dismissed pursuant to Practice Book§§ 23-29[and] 23-30."The petitioner filed a reply in which he denied each and every special defense on which the respondent relied.

On April 24 and 29, and June 11, 2019, the court, Newson, J ., conducted an evidentiary hearing on the petition for a writ of habeas corpus.Prior to trial, the petitioner withdrew the fifth count of his petition, in which he alleged a deprivation of his right to the effective assistance of habeas counsel in his prior habeas action.

In a thorough memorandum of decision dated January 10, 2020, the habeas court addressed the merits of the claims raised and denied the petition for a writ of habeas corpus.We will discuss the details of the court's decision as necessary in the context of the claims raised on appeal.²The habeas court subsequently denied the petitioner's petition for certification to appeal to this court.This appeal followed.

I

We first address the petitioner's claim that the habeas court erred in denying his petition for certification to appeal.³We conclude that the court's ruling did not constitute an abuse of its discretion.

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...