Vazquez v. Comm'r of Correction.

• Decision Date: 10 May 2011
• Docket Number: No. 31971.,31971.
• Citation: 128 Conn.App. 425,17 A.3d 1089
• Parties: Juan VAZQUEZv.COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

128 Conn.App. 425

17 A.3d 1089

Juan VAZQUEZ

v.COMMISSIONER OF CORRECTION.

No. 31971.

Appellate Court of Connecticut.

Argued Jan. 5, 2011.Decided May 10, 2011.

Heather Golias, special public defender, for the appellant (petitioner).Rocco A. Chiarenza, deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).DiPENTIMA, C.J., and LAVINE and FLYNN, Js.FLYNN, J.

The petitioner, Juan Vazquez, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying certification to appeal and that it erred in (1) denying his motion to order disclosure of the medical records of trial counsel, (2) finding that he had failed to show that trial counsel provided per se ineffective assistance during jury selection under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), or, in the alternative, that he had failed to show deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (3) finding that he was not actually innocent based on the testimony of two eyewitnesses. We dismiss the petitioner's appeal.

The facts giving rise to this case are set forth in State v. Vazquez, 79 Conn.App. 219, 830 A.2d 261, cert. denied, 266 Conn. 918, 833 A.2d 468 (2003). “On the night of July 29, 1996, John Townsend, the victim, and John Okon went to a bar in Southington for a few drinks. At around midnight, the two decided to pool their money and attempt to buy some cocaine. They then drove to a housing project on Willow Street in New Britain. Okon remained in the car as the victim got out and approached some men to ask where cocaine might be purchased. After some discussion, the victim returned to the car with the cocaine. As they began to drive off, something hit the car, and the victim instructed Okon, who was driving, to stop. The victim exited the car to investigate. Moments later, Okon heard a shot, got out of the car and saw the victim lying on the ground, dead. Okon drove away from the scene until he found a police officer to whom to report the event. At trial, in August, 2001, the state called, inter alios, two witnesses, Madelyn Cruz and Sheila Calderon, who claimed to have seen the [petitioner] shoot the victim in the head and then flee the scene. The [petitioner] also testified.” Id., at 221, 830 A.2d 261. After a trial to the jury, the petitioner was convicted of murder in violation of General Statutes § 53a–54a, and conspiracy to commit murder in violation of General Statutes §§ 53a–54a and 53a–48. The court thereafter sentenced the petitioner to a total effective term of sixty years imprisonment.¹ The petitioner's conviction was upheld on appeal. Id.

On February 27, 2009, the petitioner filed a second amended petition for a writ of habeas corpus, alleging that his trial counsel, Donald Cardwell and Nicholas Cardwell, had rendered ineffective assistance in several respects. ² Following a habeas trial, the court rejected the petitioner's ineffective assistance of counsel claims and denied the petition. Subsequently, the court also denied the petition for certification to appeal. This appeal followed.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner's appeal. “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.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 121 Conn.App. 240, 243–44, 994 A.2d 685, cert. denied, 297 Conn. 926, 998 A.2d 1193 (2010). “The required determination may be made on the basis of the record before the habeas court and the applicable legal principles.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citation omitted, internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 592–93, 940 A.2d 789 (2008).

“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.) J.R. v. Commissioner of Correction, 105 Conn.App. 827, 831, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008).

“In Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.... 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.... Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim....

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.... When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted, internal quotation marks omitted.) Griffin v. Commissioner of Correction, 98 Conn.App. 361, 365–66, 909 A.2d 60 (2006).

I

The petitioner first claims that the court improperly denied his motion to order disclosure of the medical records of trial counsel, Donald Cardwell, who represented him during two days of jury selection after being diagnosed with a brain tumor. The petitioner claims entitlement to Donald Cardwell's medical records pursuant to Practice Book §§ 13–2 and 13–11A. The petitioner sought access to the medical records for the purpose of assisting in his claim that during jury selection, Donald Cardwell failed to provide competent assistance of counsel. In response, the respondent, the commissioner of correction, argues that the petitioner's claim is unreviewable because in his motion to order disclosure of the medical records at the habeas trial, he did not cite any authority entitling him to such records. The respondent also argues, alternatively, that the petitioner's claim must fail because the rules in chapter thirteen of the Practice Book that the petitioner relies on in support of his claim on appeal are inapplicable to habeas matters pursuant to Practice Book § 23–38. The respondent further argues that even if the medical records were subject to discovery, the habeas court did not abuse its discretion in denying the petitioner's motion for disclosure because the medical records were not material to the subject matter involved, were privileged and were not within the possession or control of the respondent and did not fall within the scope of discovery rules, and, thus, were not subject to discovery.

The following additional facts are relevant to our resolution of the petitioner's claim. Attorney Donald Cardwell represented the petitioner during the pretrial proceedings and some of the jury selection. On June 18 and 20, 2001, Donald Cardwell appeared before the court on behalf of the petitioner for the purposes of jury selection. Attorney Nicholas Cardwell assumed representation of the petitioner for the remaining jury selection and represented him through the criminal trial. Nicholas Cardwell's representation is not challenged in this appeal.

On June 20, 2006, the petitioner moved the habeas...