Santana v. Comm'r of Corr.

• Decision Date: 02 November 2021
• Docket Number: AC 43687
• Parties: Luis A. SANTANA, Jr. v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

208 Conn.App. 460

264 A.3d 1056

Luis A. SANTANA, Jr.

v.COMMISSIONER OF CORRECTION

AC 43687

Appellate Court of Connecticut.

Argued April 7, 2021

Officially released November 2, 2021

Naomi T. Fetterman, for the appellant (petitioner).

Thadius L. Bochain, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).

Alvord, Alexander and Clark, Js.

ALEXANDER, J.

The petitioner, Luis A. Santana, Jr., appeals from the judgment of the habeas court denying 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 from the denial of his habeas petition and (2) improperly concluded that he had not received ineffective assistance from his criminal trial counsel. We disagree that the court abused its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal.

At the petitioner's criminal trial, the jury reasonably could have found that on September 17, 2006, the petitioner and Geraldo Rosado shot the victim, Aaron McCrea, in an area between Portsea Street and Loop Road in New Haven. State v. Santana , 313 Conn. 461, 463–64, 97 A.3d 963 (2014). The victim died from multiple gunshot wounds. Id., at 464, 97 A.3d 963. The petitioner was convicted of murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and carrying a pistol without a permit in violation of General Statutes § 29-35. Id., at 463, 466, 97 A.3d 963. Our Supreme Court affirmed his conviction on direct appeal. Id., at 464, 97 A.3d 963.

The petitioner initiated this habeas action and, on January 24, 2018, he filed an amended petition alleging three claims. Only the first claim, in which the petitioner alleged ineffective assistance of his criminal trial counsel, Lawrence Hopkins, for, inter alia, failing to investigate and to present a third-party culpability defense, is relevant to this appeal. With respect to this claim, the petitioner alleged that Hopkins was ineffective because, inter alia, he failed (1) to question Detective Michael Hunter regarding an investigation of two other suspects, Jose Montero and Juan Nunez, (2) to present out-of-court statements of witnesses interviewed by Hunter "to show what was in [Hunter's] mind at the time of his investigation of [Montero] and [Nunez]," and (3) to offer a statement made by Joseph Mungo to the police in which he identified Montero and Nunez as the individuals he saw after the shooting.

A trial on the habeas petition was held on December 11 and 12, 2018, and May 8, 2019. The petitioner did not present Hunter as a witness but presented multiple other witnesses and exhibits.¹ Jose Velazquez testified that, at the time of the murder, he lived on Liberty Street in New Haven, heard "three or four shots" and "saw somebody running, but I didn't see no faces." He further testified that, when shown photographic arrays, he was unable to identify the individual he saw running. Aixa Cruz testified that, at the time of the murder, she lived on Portsea Street in New Haven and that she had "seen two guys running in mask[s] and I didn't see nobody. I mean, I couldn't tell the person, who it was. They [were] covered." She recalled looking at photographic arrays and being unable to identify anyone.

Hopkins testified that he did not recall any specific discussions with the petitioner regarding a third-party culpability defense and added that he does not "like the defense generally. It's difficult to proffer because there's got to be a direct connection between the third party and the crime and that's fairly rarely the case." Hopkins explained that his defense "consisted largely of attacking the credibility of the witnesses ...." He testified that he was aware there were "two possible third parties, [Nunez] and [Montero]" but that he "didn't see ... any articulable reason to proffer that as third-party evidence" because he "didn't have any evidence that would amount to anything that [he] deemed would be admissible." In addition, Hopkins testified that he had not wanted to "put Montero into the mix" because "[i]t would have opened a Pandora's box of evidence that [he] felt would have been fatal rather than helpful." Hopkins explained that he wanted to keep out a statement made by the petitioner's codefendant, Rosado, that implicated the petitioner in the crime, in which Rosado "claims that [Montero] was present when a guy by the name of Primo ordered the hit of the deceased in this case in return for a $15,000 payment" and indicated that the petitioner "accepted the offer of the moneys and the guns with which to commit the homicide."

On October 17, 2019, the court issued a memorandum of decision denying the petition for a writ of habeas corpus. The court concluded that the petitioner's claim of ineffective assistance of counsel "fails because of a complete lack of evidence." The court stated that the petitioner's claim that Hopkins was ineffective when he did not question Hunter about his investigation into Nunez and Montero failed as a matter of law because the petitioner did not present Hunter as a witness. The claim that Hopkins was deficient for not presenting out-of-court statements of witnesses interviewed by Hunter failed because the petitioner did not identify particular witnesses or "support this claim with any affirmative evidence." The court indicated that "the supposed out-of-court statements made [by] whatever witnesses he interviewed were not produced." Further, the court stated that the petitioner did not establish "how ... Hunter's state of mind would have been relevant or admissible on the issue of ... Hopkins establishing a defense of third-party culpability."

On October 24, 2019, the petitioner filed a petition for certification to appeal, which the court denied. This appeal followed. On appeal, the petitioner argues that the habeas court (1) abused its discretion in denying his petition for certification to appeal because the issues are debatable among jurists of reason, a court could resolve the issues in a different manner, or the questions raised are adequate to deserve encouragement to proceed further, and (2) improperly concluded that he had not received ineffective assistance as a result of Hopkins’ failure to investigate and present a third-party culpability defense.

The respondent, the Commissioner of Correction, first argues that the petitioner's claims are unreviewable because he did not state his claim of ineffective assistance of counsel for failing to present a third-party culpability defense in his petition for certification to appeal. We are not persuaded by this argument. The petitioner stated his grounds for appeal in his application for waiver of fees, costs and expenses and appointment of counsel on appeal.² He filed the application in a self-represented capacity.

"It is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party. ... The modern trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction , 181 Conn. App. 778, 793, 189 A.3d 135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018). In stating his grounds for appeal, the petitioner specifically referred to "testimony of witnesses ... in regards to a third-party culpability defense as these witnesses originally identified other perpetrators and could not identify the petitioner." Further, the issues raised at the habeas trial included multiple claims of ineffective assistance, with one of those being that Hopkins failed to investigate and present a third-party culpability defense. On the basis of these specific facts and circumstances, we conclude that the petitioner's stated grounds for appeal sufficiently put the habeas court on notice that the petitioner sought to appeal his claim of ineffective assistance of counsel for failing to investigate and present a third-party culpability defense.

Next, the respondent argues that the habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal and that it properly concluded that the petitioner failed to prove that he was prejudiced by the alleged deficient performance of his counsel. We agree and, for the following reasons, dismiss the petitioner's appeal.

We first set forth the legal principles relevant to our resolution of this appeal. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [disposition] of his [or her] petition for [a writ of] 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 [or she] must demonstrate that the denial of his [or her] petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he [or she] 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. ...

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of ...