Sanchez v. Comm'r of Corr.

• Decision Date: 16 October 2012
• Docket Number: No. 32193.,32193.
• Citation: 53 A.3d 1031,138 Conn.App. 594
• Court: Connecticut Court of Appeals
• Parties: Jorge SANCHEZ v. COMMISSIONER OF CORRECTION.

138 Conn.App. 594

53 A.3d 1031

Jorge SANCHEZ

v.COMMISSIONER OF CORRECTION.

No. 32193.

Appellate Court of Connecticut.

Argued April 26, 2012.

Decided Oct. 16, 2012.

Michael J. Culkin, special public defender, for the appellant (petitioner).

Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Gerard Eisenman, senior assistant state's attorney, for the appellee (respondent).

GRUENDEL, SHELDON and SCHALLER, Js.

SCHALLER, J.

The petitioner, Jorge Sanchez, appeals from the judgment of the habeas court following the denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) erred in concluding that he failed to establish that he was denied effective assistance of counsel. We dismiss the appeal.

The following facts and procedural history are relevant to the petitioner's appeal. The petitioner was convicted of murder, conspiracy to commit murder and larceny in the first degree.¹ This court affirmed the petitioner's judgment of conviction on direct appeal. State v. Sanchez, 50 Conn.App. 145, 146, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). In doing so, we determined that the jury reasonably could have found the following facts.

“The [petitioner] had been a member of the Latin Kings gang from approximately 1989 until 1993, when he was expelled for breaking gang rules. He sought help from his cousin, Antonio Rigual, in getting back in the gang. Rigual asked his roommate, Edwardo Ortiz, what the [petitioner] could do to regain his membership in the gang. Ortiz asked Emanuel Roman and Richard Morales, the local gang leaders, for their advice. Roman and Morales informed Ortiz that the only way the [petitioner] could regain his membership was to kill either Louis Rodriguez ... or the victim, Angel Soto.... Ortiz did not relay this information to the [petitioner] until the [petitioner] asked Ortiz how he could regain his membership. Because the [petitioner] did not know [Soto], Ortiz pointed him out.

“With the help of others, the [petitioner] stole a red van ... and painted it with brown primer. On the evening of April 8, 1994, the [petitioner and two other individuals] drove through Bridgeport in the van looking for the victim. They saw the victim leave [a club] and followed his vehicle until it stopped outside a restaurant. When the van stopped next to the victim's vehicle, the [petitioner] and [one of his passengers] shot [Soto] repeatedly and fatally.

“After the shooting, the [petitioner] ... attended Rigual's birthday party, which was given by Ortiz. The [petitioner] told Ortiz and Rigual that he had just killed the victim. Rigual put his necklace of colored beads on the [petitioner], a sign of gang membership. The day after the murder, Ortiz and the [petitioner's] brother [Lester Simonetty] purchased flares, intending to burn the van, which was recovered before it was burned.” Id., at 146–47, 718 A.2d 52.

In an amended petition for a writ of habeas corpus filed November 9, 2009, the petitioner claimed that his trial counsel, Jonathan J. Demirjian, rendered ineffective assistance by failing to call Rigual and Simonetty as witnesses on his behalf. Specifically, the petitioner testified during the habeas trial that he first became aware of Rigual's and Simonetty's alleged involvement in the shooting when they were implicated by Ortiz' testimony.² The petitioner testified that he then informed his defense counsel that he wanted Rigual and Simonetty to testify to see if they would corroborate Ortiz' statements or if they would deny involvement with or knowledge of Soto's death and, by doing so, undermine the account of events given by Ortiz. Defense counsel did not call either Rigual or Simonetty as a witness at the petitioner's trial and he testified at the habeas trial that he had no independent recollection of Rigual's or Simonetty's specific involvement with the petitioner's case or whether they were investigated.³ Rigual and Simonetty both testified at the habeas trial that they were not members of the Latin Kings when the shooting occurred and that they had no personal knowledge about the facts and circumstances pertaining to the shooting.

The habeas court denied the petition for a writ of habeas corpus, concluding that the petitioner failed to meet his burden of proving deficient performance and prejudice. In reaching this conclusion, the habeas court specifically determined that the petitioner failed to meet his burden of proving prejudice, reasoning that a jury would be unlikely to find the testimony of either Rigual or Simonetty credible.⁴ Subsequently, the habeas court denied the petition for certification to appeal. This appeal followed.

“We begin by setting forth the applicable 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 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 its merits....

“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....

“We examine the petitioner's underlying claim 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.) Barlow v. Commissioner of Correction, 131 Conn.App. 90, 93–94, 26 A.3d 123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011).

“In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffectiveassistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that deficient performance prejudiced the defense.” (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn.App. 432, 436, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “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.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn.App. 662, 668, 14 A.3d 1066, cert. denied, 301 Conn. 913, 19 A.3d 1259 (2011). “In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland v. Washington, supra, 466 U.S. at 697, 104 S.Ct. 2052;State v. Brown, 279 Conn. 493, 525–26, 903 A.2d 169 (2006).

In the present case, the petitioner claims that the habeas court abused its discretion in determining that Rigual and Simonetty were not credible and that, consequently, the petitioner failed to meet his burden of demonstrating to a reasonable probability that the outcome of his trial would have been different had defense counsel called them as witnesses. We are not persuaded.

“The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn.App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). In the present case, the habeas court concluded that a jury would be unlikely to find Rigual and Simonetty credible as both are convicted felons and both “would have a motive to be deceptive.” ⁵ Absent evidence demonstrating that this factual finding was clearly erroneous, we will not disturb the habeas court's conclusions in this regard.

The petitioner cites Bryant v. Commissioner of Correction, 290 Conn. 502, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, ––– U.S. ––––, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009), in support of his argument that defense counsel's failure to call Rigual and Simonetty as rebuttal witnesses likely affected the outcome of his criminal trial. In Bryant, our Supreme Court held “that in circumstances that largely involve a credibility contest ... the testimony of neutral, disinterested witnesses is exceedingly important.” (Internal quotation marks omitted...