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Apodaca v. Commissioner of Correction

Court of Appeals of Connecticut

August 9, 2016


          Submitted on briefs May 26-2016

         Appeal from Superior Court, judicial district of Tolland, Oliver, J.

          Walter C. Bansley TV and Wade Luckett, assigned counsel, filed a brief for the appellant (petitioner).

          Matthew C. Gedansky, state's attorney, Denise B. Smoker, senior assistant state's attorney, and David M. Carlucci, assistant state's attorney, filed a brief for the appellee (respondent).

          Lavine, Beach and Alvord, Js.


          BEACH, J.

         The petitioner, Herman Apodaca, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court erred in concluding that he failed to prove ineffective assistance of his trial counsel because of counsel's failure to call a potential defense witness. We affirm the judgment of the habeas court.

         The following facts regarding the underlying criminal conviction were set forth by our Supreme Court on direct appeal and restated by the habeas court. "In August, 2005, the [petitioner], a New York resident, met John Ortiz, a New Britain barber. The [petitioner] asked Ortiz to let him know whether he knew anyone in Connecticut who might be interested in buying large quantities of drugs. Some time after that meeting, Ortiz contacted the [petitioner] and relayed information that a friend, Luis Bruno, was interested in making such a purchase.

         "On September 22, 2005, the [petitioner] and two of his acquaintances, Eduardo Davila and Rodney Hankerson, went to New Britain, where Ortiz introduced them to Bruno. An agreement was reached to sell Bruno four kilograms of cocaine at a price of $19, 000 per kilogram, with the sale to take place two days later. The [petitioner], Davila and Hankerson decided to use the sale as a pretext to steal Bruno's money.

         "On September 24, 2005, Bruno called Davila on the [petitioner's] cell phone to express reservations about the sale, and they ultimately agreed that Bruno could purchase two, rather than four, kilograms of cocaine. Later that same day, the [petitioner], Hankerson and Davila drove to New Britain, where they met Ortiz in a store parking lot. Davila and Hankerson carried guns on them as directed by the [petitioner]; the [petitioner] gave Davila a larger gun so 'it would look more intimidating' and directed Davila to give his own smaller gun to Hankerson. Hankerson brought with him a duffle bag containing rolls of duct tape and bricks of fake cocaine made out of sheetrock. The [petitioner], driving one vehicle, with Hankerson as his passenger, and Davila, driving a second vehicle, followed Ortiz' car to Bruno's apartment in New Britain. Davila went to Bruno's apartment and entered through the rear door. Davila saw stacks of money piled on the kitchen table and drew his gun on Bruno. Davila then relayed a message to the [petitioner's] cell phone indicating that everything was under control. The [petitioner] entered the apartment, along with Hankerson who was carrying the bag containing the duct tape and fake cocaine. A fight ensued between Hankerson, Davila and Bruno. The [petitioner] filled a grocery bag with the cash that was piled on the kitchen table and returned with it to his car, leaving Hankerson and Davila to deal with Bruno. During the struggle with Bruno, in which Hankerson and Davila tried to bind his mouth, arms and legs with the duct tape, Bruno was beaten and fatally stabbed.

         "Hankerson and Davila fled the apartment and drove to a rest stop, where they met the [petitioner]. The two men had blood on their clothes, and the [petitioner] directed them to get back into their vehicle and to follow him. The [petitioner] led them back to his girlfriend's apartment in New York, where he gave them a change of clothes. The three men split the money taken from Bruno's apartment.

         "Thereafter, the [petitioner] was arrested and charged with felony murder, two counts of robbery in the first degree and one count of conspiracy to commit robbery in the first degree. At trial, the [petitioner] did not dispute that he had been involved in a scheme to sell Bruno drugs, but disclaimed any knowledge of the robbery or murder. . . . The jury returned a verdict of guilty on all four counts." State v. Apodaca, 303 Conn. 378, 381-83, 33 A.3d 224 (2012). The petitioner appealed directly to our Supreme Court, pursuant to General Statutes § 51-199 (b) (3), and his convictions were affirmed. Id., 379, 402.

         The petitioner filed the operative petition for a writ of habeas corpus in December, 2014. The petitioner alleged, inter alia, that his trial counsel, Devereaux Can-nick, rendered ineffective assistance for failing to call Hankerson as a witness at the petitioner's criminal trial.[1]Following a trial, the court concluded that the petitioner had failed to prove both deficient performance and prejudice. The court granted certification to appeal from the denial of the habeas petition. This appeal followed.

         We begin with the applicable standard of review and relevant principles of law. "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. . . . As enunciated in Strickland v.Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... 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 .... A court can find against a petitioner, with ...

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