Submitted on briefs May 26-2016
from Superior Court, judicial district of Tolland, Oliver, J.
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
Lavine, Beach and Alvord, Js.
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
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.
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
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
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.
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.
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.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.
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 ...