Sanchez v. Comm'r of Corr.

• Decision Date: 13 April 2021
• Docket Number: AC 43047
• Citation: 203 Conn.App. 752,250 A.3d 731
• Parties: Edwin SANCHEZ v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

203 Conn.App. 752

250 A.3d 731

Edwin SANCHEZ

v.COMMISSIONER OF CORRECTION

AC 43047

Appellate Court of Connecticut.

Argued December 1, 2020

Officially released April 13, 2021

James E. Mortimer, assigned counsel, for the appellant (petitioner).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Moll, Alexander and DiPentima, Js.

DiPENTIMA, J.

The petitioner, Edwin Sanchez, appeals from the judgment of the habeas court, Newson, J. , dismissing counts three and four of his second amended petition for a writ of habeas corpus and denying count two of his petition. On appeal, the petitioner claims that the court improperly (1) dismissed his due process claim as procedurally defaulted, (2) dismissed his actual innocence claim on the ground of res judicata, and (3) denied his ineffective assistance of habeas counsel claim. We disagree and affirm the judgment of the habeas court.

The following recitation of facts as to the underlying offense was set forth by this court in the petitioner's direct appeal from his conviction. "Darence Delgado was murdered on May 2, 1995, on North Street in New Britain. Prior to the murder, Jose Pabon was with the [petitioner] on Willow Street, across the street from a basketball court where Delgado and [Juan Vazquez]¹ were talking. Pabon was a neighbor of the [petitioner]. That afternoon, the [petitioner] asked Pabon to retrieve a gun that [Juan Vazquez] had left at Pabon's house. After returning with the gun, Pabon noticed that Delgado was no longer at the basketball court. Pabon offered the gun to the [petitioner], but the [petitioner] told him to hold on to it. The [petitioner] then told Pabon to walk with him to the corner of North and Willow Streets.

"When they arrived at the corner, the [petitioner] told Pabon, ‘When I start shooting, you shoot.’ Turning onto North Street, they saw [Juan Vazquez] and Delgado, who was sitting on a bicycle, approximately twenty-five feet away. The [petitioner] approached them while Pabon remained at the corner. The [petitioner] looked at Pabon and nodded his head. He then pulled out a black nine millimeter handgun, aimed it at Delgado's upper body and opened fire from close range. Delgado fell to the ground and the [petitioner] continued to shoot him. The [petitioner] turned around, looked at Pabon and spread his arms. Pabon pulled out the gun he had retrieved and fired four shots at Delgado. The [petitioner] turned toward Delgado and again fired at him. The [petitioner] and Pabon then ran from the scene and hid their guns.

"A week or so after the shooting, Pabon saw Miguel Colon carrying the gun that the [petitioner] had used to shoot Delgado. Pabon and Colon smashed it with hammers and wrenches, destroying all but the barrel of the gun. They wrapped the barrel in bags and buried it in Pabon's backyard. The police later seized that barrel. Forensic testing revealed that it was a nine millimeter barrel and that the intact nine millimeter bullet removed from Delgado's body during the autopsy was consistent with having been fired from this barrel.

"On September 23, 1997, the [petitioner] was charged by information with murder and conspiracy to commit murder. After a trial by jury, the [petitioner] was convicted of both charges and sentenced to a total effective term of sixty years imprisonment. The [petitioner] filed motions for acquittal and a new trial, which the court denied." (Footnote added and omitted.) State v. Sanchez , 84 Conn. App. 583, 585–86, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004).

This court affirmed the trial court's judgment on appeal. Id., at 594, 854 A.2d 778. The petitioner made four arguments in his direct appeal, one of which is relevant to the operative petition in the present matter. Id., at 584–85, 854 A.2d 778. The petitioner claimed that the state improperly withheld exculpatory evidence regarding the credibility and culpability of Pabon, who testified for the state at trial. Id., at 586, 854 A.2d 778. In particular, the petitioner claimed that the state had failed to disclose the consideration that Pabon had been promised in exchange for his testimony. Id., at 586–87, 854 A.2d 778. This court concluded that there was no evidence that the state had improperly withheld exculpatory information and affirmed the petitioner's conviction. Id., at 587, 854 A.2d 778.

The petitioner filed his first petition for a writ of habeas corpus on November 2, 2004. That petition contained a due process claim, alleging that the state had failed to disclose the details of the deal it made with Pabon. It also included an actual innocence claim, alleging that the murder actually was carried out by Pabon and "one or more other persons ...." Following a trial, the habeas court, Newson, J. , denied the petition.

This court subsequently dismissed the appeal. Sanchez v. Commissioner of Correction , 147 Conn. App. 903, 80 A.3d 934 (2013).

The petitioner filed his second petition for habeas corpus, which is the subject of this appeal, in December, 2013. The October 29, 2018 second amended petition contained four counts, of which counts two through four are relevant to this appeal.² In the second count, the petitioner alleged that his prior habeas counsel had been ineffective for failing to investigate and present the testimony of Efrain Padua and to question Juan Vazquez properly. The petitioner alleged that they would have testified to the true identity of the shooter and the petitioner's whereabouts on the day of the shooting. In the third count, the petitioner alleged actual innocence on the basis that new testimony would establish that he was not the shooter. In the fourth count, the petitioner alleged a violation of his right to due process at his criminal trial, specifically alleging that the state had failed to disclose all relevant details surrounding the pretrial cooperation agreement with Pabon.³

A trial was held before the habeas court, Newson, J. , on October 30, 2018. On April 4, 2019, the habeas court issued a memorandum of decision dismissing or denying each of the petitioner's claims. As to the second count, the court denied the claim that the petitioner's first habeas counsel rendered ineffective assistance, referring to the general presumption of competence afforded to counsel in trial strategy and noting credibility concerns with the petitioner's witnesses. As to the third count, the court dismissed the actual innocence claim on the ground of res judicata, concluding that it was nearly identical to the one advanced in the petitioner's first habeas trial and that it was based on facts and evidence that could have been discovered through reasonable diligence at the time of the first petition. Lastly, as to the fourth count, the court dismissed the due process claim on the ground of procedural default. Thereafter, the petitioner filed a petition for certification to appeal from the judgment denying and dismissing his petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

We begin with the two counts that the court dismissed: the petitioner's due process and actual innocence claims. We conclude that both of these claims are subject to dismissal pursuant to res judicata. Accordingly, we affirm the judgment of the habeas court dismissing the petitioner's due process and actual innocence claims.

Before we turn to the petitioner's claims, we briefly set forth the appropriate standard of review for a dismissal of a habeas petition. "The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. ... [When] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , 285 Conn. 556, 566, 941 A.2d 248 (2008).

A

The petitioner first argues that the habeas court erred in dismissing his due process claim as procedurally defaulted. The respondent, the Commissioner of Correction, counters that we should affirm the habeas court's ruling on the alternative ground of res judicata. We agree with the respondent.

The following additional facts and procedural history are relevant to our resolution of this claim. Pabon testified on behalf of the state at the petitioner's criminal trial.

State v. Sanchez , supra, 84 Conn. App. at 586, 854 A.2d 778. Pabon "testified that he personally had not been promised anything by the prosecution for his testimony, and that he was hoping to be given consideration for his cooperation." Id., at 586–87, 854 A.2d 778. He also testified that his attorney had told him that he would receive consideration for cooperating. Id., at 587, 854 A.2d 778. A week after the petitioner had been sentenced, the murder and conspiracy to commit murder charges against Pabon were dismissed, and Pabon pleaded guilty to the charge of assault in the first degree. Id. The petitioner, whose appeal from his conviction initially had been filed with our Supreme Court, filed a motion for rectification and augmentation of the trial court record in which he sought an evidentiary hearing pursuant to State v. Floyd , 253 Conn. 700, 756 A.2d 799 (2000) ( Floyd hearing),⁴ to determine whether the state had "failed in its constitutional duty to disclose exculpatory information." (Internal quotation marks omitted.) State v. Sanchez , supra, at 586 n.4, 854 A.2d 778. The trial court denied the motion, and our Supreme Court upheld the denial on review. Id. In its memorandum of decision on the motion, the trial court concluded that "[t]here is no evidence that the prosecution failed to reveal a plea...