Humble v. Comm'r of Corr.

• Decision Date: 03 April 2018
• Docket Number: AC 39441
• Court: Connecticut Court of Appeals
• Parties: Derek HUMBLE v. COMMISSIONER OF CORRECTION

180 Conn.App. 697

184 A.3d 804

Derek HUMBLE

v.COMMISSIONER OF CORRECTION

AC 39441

Appellate Court of Connecticut.

Argued November 28, 2017

Officially released April 3, 2018

Peter Tsimbidaros, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara A. Grosso, assistant state's attorney, for the appellee (respondent).

Alvord, Bright and Sullivan, Js.

ALVORD, J.

The petitioner, Derek Humble, appeals from 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. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. Specifically, the petitioner claims that his trial counsel rendered ineffective assistance by (1) failing to adequately investigate exculpatory evidence, and (2) misadvising him to plead guilty to murder. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. Accordingly, we dismiss the appeal.

The record reveals the following facts and procedural history. On March 24, 2004, the petitioner shot and killed the victim, Victor Blue, inside Melissa's Market in Hartford. The state charged the petitioner, in two criminal cases, with murder in violation of General Statutes § 53a–54a, criminal use of a firearm in violation of General Statutes § 53a–216, criminal possession of a firearm in violation of General Statutes § 53a–217, and escape in the first degree in violation of General Statutes § 53a–169.¹ The court appointed Attorney Robert J. Meredith of the Public Defender's Office to represent the petitioner. On May 26, 2005, the petitioner pleaded guilty, pursuant to the Alford doctrine,² to murder and criminal use of a firearm.³ The petitioner also pleaded guilty to carrying a pistol without a permit and escape in the first degree.

At the time of the plea, the court, Miano, J. , canvassed the petitioner, asking in relevant part whether the petitioner had an opportunity to speak with counsel, whether the petitioner was satisfied with counsel, whether the petitioner understood the state's allegations, and whether the petitioner understood that, by pleading guilty, he was giving up his rights to have a trial by jury or judge, to confront and cross-examine the state's witnesses, to remain silent, to have the state prove every element of the offenses beyond a reasonable doubt, and to present a defense.⁴ The court also explained the factual bases for the pleas, the elements of the crimes charged, and the maximum sentences the petitioner could receive. The court explained: "[Y]our exposure here for these crimes, if my arithmetic is correct, is not less than twenty-five years, nor more than seventy-five years, plus fines." After concluding the canvass, the court found that the petitioner's pleas were knowing, voluntary, and intelligently made with the effective assistance of counsel, and accepted the petitioner's guilty pleas. The court sentenced the petitioner to thirty years imprisonment pursuant to an agreed upon recommendation between the petitioner and the state. The petitioner did not file a direct appeal from his conviction.

On September 28, 2015, the petitioner filed an amended petition for a writ of habeas corpus, in which he alleged one count of ineffective assistance of his trial counsel. Specifically, he claimed that Attorney Meredith failed to conduct an adequate investigation of the case, and to interview all eyewitnesses to the shooting. The petitioner also claimed that Attorney Meredith advised him to plead guilty without thoroughly investigating a potential defense of self-defense.⁵ A trial commenced before the habeas court, Fuger, J. , on June 14, 2016.

The habeas court was presented with evidence of the following facts. The killing was the result of "bad blood" that existed between the petitioner and his friends and the victim and his friends. On March 23, 2004, in response to learning that the victim "had family members or so that ... wanted to do bodily harm" to him, the petitioner traveled to Clark Street in Hartford, where he knew the victim hung out, to "shake him up a little bit." The petitioner robbed the victim at gunpoint. Later that evening, as the petitioner was walking with his friend, Jason Barclay, a man "came out the—one of the driveways, made a comment, pulled out a gun and started shooting at us." The petitioner returned fire, heard police sirens, and ran.

The next day, on March 24, the petitioner left his cell phone at Melissa's Market to charge. Later that day, Patrick Ward, a friend of the petitioner, informed him that the victim had been bragging about shooting at him the night before. When the petitioner returned to the store to retrieve his cell phone, Raymond Rodriguez informed the petitioner that the victim and another man were at the store looking for him earlier that day. The petitioner observed the victim and Naquan Hartage, whom the petitioner knew, exit the store. The victim and the petitioner "made eye contact." The petitioner entered the store to retrieve his cell phone. As the petitioner was reaching for his cell phone, it rang. Ward was calling to warn the petitioner that the victim was returning to the store. The petitioner observed the victim walking toward the store. The petitioner was standing in a "little cubbyhole off to the side" near the entrance of the store. According to the petitioner, the victim entered the store, looked at the petitioner, took a few steps, turned around, and reached for a gun. At that point, the petitioner pulled out a gun and shot the victim multiple times. The petitioner fled the store. As the petitioner was running out of the store, he noticed Hartage running into the store.

Following the shooting, Hartage gave a voluntary statement to the police in which he identified the petitioner as the shooter.⁶ The police arrested the petitioner on March 31, 2004, in Mississippi. After police arrested the petitioner, he signed a voluntary statement in which he confessed to killing the victim, but claimed to have done so in self-defense. On May 18, 2004, Ward also gave a voluntary statement to the police, in which he corroborated the petitioner's claim that, on March 24, the victim was seeking the petitioner out in retaliation for the March 23 robbery.⁷ Ward also told police that immediately following the shooting, he ran into Melissa's Market and observed Hartage removing a gun from the victim's hand. The police did not recover a gun on the victim's body.

In an oral decision, the habeas court denied the amended petition for a writ of habeas corpus, finding that the petitioner had failed to satisfy the requirements of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed.

We first set forth our standard of 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 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 its merits." (Internal quotation marks omitted.) Morris v. Commissioner of Correction , 131 Conn. App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011). "A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Clinton S. v. Commissioner of Correction , 174 Conn. App. 821, 826, 167 A.3d 389, cert. denied, 327 Conn. 927, 171 A.3d 59 (2017).

"We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. 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." (Internal quotation marks omitted.) Morris v. Commissioner of Correction , supra, 131 Conn. App. at 842, 29 A.3d 914.

"[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], we apply the two part test annunciated by the United States Supreme Court in Strickland and Hill [v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ].... In Strickland , which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ....

"To satisfy the performance prong under Str...