Diaz v. Commissioner of Correction, 092920 CTCA, AC 41159

Docket Nº:AC 41159
Opinion Judge:ALVORD, J.
Party Name:DANIEL DIAZ v. COMMISSIONER OF CORRECTION
Attorney:Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner). Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Angela R. Macchiarulo, senior assistan...
Judge Panel:DiPentima, C. J., and Alvord and Keller, Js.
Case Date:September 29, 2020
Court:Appellate Court of Connecticut
 
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DANIEL DIAZ

v.

COMMISSIONER OF CORRECTION

No. AC 41159

Court of Appeals of Connecticut

September 29, 2020

Argued June 17, 2020

Procedural History

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and transferred to the judicial district of Fairfield, where the matter was tried to the court, Devlin, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

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

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

DiPentima, C. J., and Alvord and Keller, Js. [*]

OPINION

ALVORD, J.

The petitioner, Daniel Diaz, appeals from the judgment of the habeas court denying his petition for certification to appeal from the court's denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal, (2) improperly denied his request for an evidentiary hearing, and (3) improperly denied his ineffective assistance of counsel claim. We conclude that the court properly exercised its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal.

The following facts and procedural history are relevant to this appeal. "In early 2001, the [petitioner] was under investigation by the New Britain [P]olice [D]epartment for illegal drug related activities. On March 13, 2001, New Britain police officers arrested Kevin Lockery, who was known by the police as a drug user, for a narcotics offense. In an effort to gain lenient treatment, Lockery identified the [petitioner] as a drug dealer and provided the police with information about the [petitioner]. At the direction of the police, Lockery called the [petitioner] on a cellular telephone and arranged to purchase five bags of heroin at a specific location in New Britain. Shortly after the [petitioner] received Lockery's call, the [petitioner] left his residence and drove to that location. Lockery did not meet the [petitioner] as arranged, and, after several minutes, the [petitioner] began to drive away.

"Police officers stopped the [petitioner's] automobile. A search of the [petitioner] yielded twenty-five packets of heroin, $1025 and a cellular phone that displayed among received calls the telephone number from which Lockery had called the [petitioner] to arrange the drug purchase. A subsequent search of the [petitioner's] residence, pursuant to a warrant, yielded 168 packets of heroin, sixteen grams of marijuana, a twelve gauge shotgun, several shotgun shells and numerous other items typically used in the sale and distribution of illegal drugs." State v. Diaz, 109 Conn.App. 519, 522-23, 952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008).

In his first criminal trial in 2002, the petitioner was found guilty by a jury of having committed multiple charged offenses, but the judgment of conviction was reversed by our Supreme Court because the petitioner had received an inadequate canvass from the trial court regarding his decision to waive counsel and represent himself. See State v. Diaz, 274 Conn. 818, 828, 878 A.2d 1078 (2005). In his second criminal trial in 2006, the petitioner was found guilty by a jury of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics in viola- tion of General Statutes § 21a-279 (a), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). This court affirmed the judgments of conviction on appeal. See State v. Diaz, supra, 109 Conn.App. 519.

On March 25, 2013, the self-represented petitioner filed a petition for a writ of habeas corpus. On May 13, 2015, the petitioner, with the assistance of counsel, filed an amended petition for a writ of habeas corpus, which is the operative petition in this appeal. The petition contained five counts, only four of which are relevant to this appeal.[1] In the first count, the petitioner alleged that during his first criminal trial, the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the petitioner alleged that the prosecutor had failed to disclose (1) Lockery's criminal record, (2) the fact that the drugs that were found on Lockery during his March 13, 2001 arrest were not purchased from the petitioner, as Lockery testified during the first criminal trial, and (3) that the packaging of the drugs that were found on Lockery displayed a different logo than the logo on the packaging of the drugs that were discovered on the petitioner's person and at his residence. In the second count, the petitioner alleged that the prosecutor's deliberate Brady violations constituted prosecutorial impropriety, thereby rendering his further prosecution in the second criminal trial a violation of his constitutional right against double jeopardy.

In the third count, the petitioner alleged that Frank Canace, his defense counsel in the second criminal trial, had a conflict of interest as a result of his employment as a New Haven police officer while representing the petitioner as a special public defender. The petitioner alleged that Canace's conflict of interest manifested itself when he failed (1) to move to dismiss the petitioner's criminal charges on double jeopardy grounds, (2) to identify false statements made by police officers in the search warrant affidavit, and (3) to adequately cross-examine police officers concerning their prior inconsistent statements and the discrepancy between the logos on the packaging of the drugs seized from the petitioner and those discovered on Lockery prior to his March 13, 2001 arrest. In the fourth count, the petitioner alleged that Canace rendered ineffective assistance of counsel.

A trial on the petition was held before the habeas court, Devlin, J., on July 27, 28 and 31, 2017 (second habeas trial).2 On August 16, 2017, Judge Devlin issued a memorandum of decision in which he denied each of the petitioner's claims. Thereafter, the petitioner filed a petition for certification to appeal from Judge Devlin's denial of his petition for a writ of habeas corpus. Judge Devlin denied the petition for certification to appeal, and the petitioner filed this appeal. Additional facts will be set forth as necessary.

We begin by setting forth the standard of review of appeals from the denial of a petition for certification to appeal. "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, [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. . . . As to the first prong, the standard requires the petitioner to demonstrate that the issues 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." (Citation omitted; internal quotation marks omitted.) Lenti v. Commissioner of Correction, 195 Conn.App. 505, 509-10, 225 A.3d 1233, cert. denied, 335 Conn. 905, 226 A.3d 151 (2020).

On appeal, the petitioner raises two claims, both of which he argues satisfy the first prong of the Simms standard because they are debatable among jurists of reason, could be resolved differently by another court, and/or involve questions that are adequate to deserve encouragement to proceed further. See, e.g., id., 509. First, the petitioner claims that the court improperly denied his request for an evidentiary hearing prior to permitting the respondent, the Commissioner of Correction, to introduce testimony at his second habeas trial from Mary Rose Palmese, the assistant state's attorney during both of his criminal trials. Second, the petitioner asserts that the court improperly denied his ineffective assistance of counsel claim. For the reasons set forth in parts I and II of this opinion, we conclude that the petitioner has failed to show that his claims 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. We therefore conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

I

The petitioner first claims that the court improperly denied his request for an evidentiary hearing prior to permitting the respondent to introduce testimony from Palmese in his second habeas trial. The following additional facts are relevant to this...

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