Salters v. Comm'r of Corr.

• Decision Date: 29 August 2017
• Docket Number: AC 38371.
• Citation: 175 Conn.App. 807,170 A.3d 25
• Court: Connecticut Court of Appeals
• Parties: Gaylord SALTERS v. COMMISSIONER OF CORRECTION

175 Conn.App. 807

170 A.3d 25

Gaylord SALTERS

v.COMMISSIONER OF CORRECTION

AC 38371.

Appellate Court of Connecticut.

Argued April 11, 2017

Officially released August 29, 2017

Arthur L. Ledford, assigned counsel, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom were Patrick J. Griffin, state's attorney, and, on the brief, Adrienne Maciulewski, assistant state's attorney, for the appellee (respondent).

Lavine, Mullins and Bear, Js.

BEAR, J.

The petitioner, Gaylord Salters, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly (1) failed to apply the strict standard of materiality to his claim of a Brady violation,² which included factual allegations that the prosecution knowingly relied on false testimony; (2) denied his claim of ineffective assistance by his prior habeas trial counsel (habeas counsel) for failing to raise a claim that the petitioner's criminal trial counsel (trial counsel) was ineffective for failing to raise a claim of instructional error;³ (3) failed to apply the "findings" that this court made in his appeal from the judgment in his first habeas case; and (4) found that the decision of his appellate counsel on direct appeal (appellate counsel) to forgo raising a prosecutorial impropriety claim was a reasonable strategic decision. We affirm the judgment of the habeas court.

As this court previously stated, the jury reasonably could have found the following facts in the petitioner's criminal trial. "On November 24, 1996, the [petitioner] participated in a gang related shooting in New Haven. The [petitioner], a member of the Island Brothers street gang, drove behind an automobile being driven by Daniel Kelley. Either the [petitioner] or an accomplice riding in his automobile fired on Kelley's automobile. Kelley sustained a gunshot wound

to his shoulder and lost control of his automobile, causing it to crash into two vehicles parked nearby. Kelley's passenger, Kendall Turner, a member of the Ghetto Boys street gang, sustained a gunshot wound to his elbow. The Island Brothers and the Ghetto Boys, both of which were involved in illegal activity, had a hostile relationship marked by gun violence between rival gang members." State v. Salters , 89 Conn.App. 221, 222–23, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005).

The following factual and procedural background is relevant to our resolution of the petitioner's appeal. Following a jury trial, the petitioner was convicted of two counts of assault in the first degree in violation of General Statutes §§ 53a–59(a)(5) and 53a–8, and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–59(a)(5) and 53a–48(a). Id., at 222, 872 A.2d 933. The petitioner directly appealed to this court, claiming that the trial court violated his right to present a defense by precluding him from presenting testimony from an alibi witness at trial. Id. This court affirmed his conviction. Id., at 236, 872 A.2d 933.

In 2006, the petitioner filed his first petition for a writ of habeas corpus, which he subsequently amended. In his second amended petition, he claimed that he was denied due process because the prosecutor withheld material, exculpatory impeachment information, which constituted a Brady violation, in that the prosecutor failed to provide such information pertaining to Kendall Turner, a key witness for the state. Salters v. Commissioner of Correction , 141 Conn.App. 81, 83–84, 60 A.3d 1004, cert. denied, 308 Conn. 932, 64 A.3d 330 (2013). He also alleged ineffective assistance of counsel because his trial counsel failed (1) to sufficiently investigate, discover, and present to the jury information regarding Turner's statement to the police and (2) to conduct sufficient discovery.⁴ Id., at 84, 60 A.3d 1004. After conducting a habeas trial, the court, Fuger, J. , rendered judgment denying the petition. Id. The habeas court determined that defense counsel's testimony was more credible than the petitioner's testimony, that defense counsel adequately investigated Turner's criminal history prior to trial, and that the prosecutor disclosed all of the information he had pertaining to Turner. Id. The petitioner subsequently appealed to this court.

On appeal, this court concluded that the habeas court did not err in rejecting the petitioner's claim of ineffective assistance of counsel. Id., at 86, 60 A.3d 1004. Additionally, this court held that the petitioner's Brady claim was procedurally defaulted because, at the time of trial and his direct appeal, he knew of the existence of the records that he claimed in his habeas petition were unlawfully withheld, and he could have raised the alleged Brady violation at trial by requesting an evidentiary hearing on the potential Brady evidence or on direct appeal by raising a Brady claim. Id., at 89–90, 60 A.3d 1004. Consequently, this court affirmed the habeas court's judgment denying the petition; id., at 91, 60 A.3d 1004 ; and our Supreme Court denied certification to appeal. Salters v. Commissioner of Correction , 308 Conn. 932, 64 A.3d 330 (2013).

On June 2, 2010, the then self-represented petitioner filed a second petition for a writ of habeas corpus, which is the subject of the present appeal. The habeas court appointed counsel for him. In his fifth amended petition, the petitioner set forth seventeen counts, four of which are relevant to this appeal. In count one, the petitioner asserted that his habeas counsel provided ineffective assistance by failing to allege that his trial counsel provided ineffective assistance by failing to request an evidentiary hearing, pursuant to Brady , which would have revealed material, exculpatory impeachment evidence. Additionally, in count fourteen, the petitioner claimed that his habeas counsel provided ineffective assistance by failing to allege that trial counsel provided ineffective assistance when he failed to object to erroneous jury instructions, which prejudiced the petitioner's case. In count six, the petitioner asserted that his habeas counsel provided ineffective assistance by failing to allege that appellate counsel provided ineffective assistance by failing to "raise the Brady violation ...." Additionally, in count seven, the petitioner claimed that his habeas counsel provided ineffective assistance by failing to allege that his appellate counsel provided ineffective assistance by failing to raise a claim of prosecutorial impropriety because the prosecutor misstated evidence during closing arguments.

On July 22, 2015, the habeas court, Cobb, J. , rendered judgment denying the petition. As to count one, the court found that the petitioner had failed to establish prejudice by proving that there was a reasonable probability that the result in his criminal trial would have been different. The court determined that further impeachment of Turner would not have added significantly to his cross-examination. On count fourteen, the court found that the jury instruction was appropriate and, therefore, the petitioner had failed to prove that his trial counsel's or his habeas counsel's performance was deficient or that he was prejudiced. As to count six, the court found that there was an inadequate record on direct appeal to raise a previously unraised Brady claim to satisfy Golding review.⁵ Additionally, the court had already found that the petitioner failed to prove prejudice regarding the claimed Brady violation and that appellate counsel's decision to forgo such a claim was a strategic decision. Accordingly, the court denied this claim as to appellate counsel. Finally, on count seven, the court found that there was no evidence that appellate counsel could have satisfied the requirements of Golding to prevail on a previously unraised claim of prosecutorial impropriety.⁶ Additionally, the habeas court found that appellate counsel's decision to forgo this claim, which she considered weak, was a reasonable strategic decision and that the petitioner failed to establish that he would have prevailed on such a claim. Consequently, the court denied the petition for a writ of habeas corpus. Thereafter, the habeas court granted the petitioner certification to appeal, and this appeal followed.

"We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012).

"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citation omitted; internal quotation marks omitted.) Breton v. Commissioner of Correction , 325 Conn. 640, 668–69, 159 A.3d 1112 (2017).

"[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this...