October 24, 2016
from Superior Court, judicial district of Tolland, Fuger, J.
E. Mortimer, with whom, on the brief, was Michael D. Day, for
the appellant (petitioner).
Herskowitz, senior assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Angela Macchiarulo, senior assistant state's attorney,
for the appellee (respondent).
DiPentima, C. J., and Mullins, and Foti, Js.
petitioner, Julian Marquez, appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, he claims that the habeas court (1) abused
its discretion by denying his petition for certification to
appeal, and (2) improperly concluded that the alleged conduct
of the prosecutor in the underlying criminal proceeding did
not violate the petitioner's right to due process and a
fair trial. We conclude that the habeas court did not abuse
its discretion in denying the petition for certification to
appeal, and, accordingly, dismiss the appeal.
following facts and procedural history are relevant to our
resolution of the petitioner's claims. The
petitioner's conviction arises from a home invasion that
occurred in the early hours of December 20, 2003, during
which the petitioner and an accomplice, Edwin Soler, forced
entry into an apartment at gunpoint, robbed four men in the
apartment, struggled with and ultimately fatally shot one of
the robbery victims, and then fled into the
night. Only the petitioner carried a weapon. The
robbery victim who was killed, Miguel Delgado, Jr., lived at
the apartment, and the other three robbery victims,
Christopher Valle, Mark Clement, and Amauri Escobar, were
friends visiting Delgado. The petitioner was charged with,
and, after a jury trial, ultimately was convicted of, one
count of felony murder in violation of General Statutes
§ 53a-54c, two counts of robbery in the first degree in
violation of General Statutes § 53a-134 (a) (2), and one
count of attempt to commit robbery in the first degree in
violation of General Statutes §§ 53a-49 and 53a-134
(a) (2). See State v. Marquez, 291 Conn.
122, 124, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct.
237, 175 L.Ed.2d 163 (2009).
petitioner's criminal trial, the state presented the
testimony of the petitioner's codefendant, Soler, as well
as the testimony of two of the surviving robbery victims,
Valle and Clement. Both Valle and Clement testified that the
petitioner was the gunman. Soler testified that the
petitioner was the assailant who physically struggled with
and fatally shot Delgado. Additionally, Soler testified that,
at the sound of the first gunshot, he fled the scene in fear,
and then heard a second shot while fleeing. Soler testified
that he did not have an agreement with the state to receive
any benefit in exchange for his testimony. Rather, Soler
explained that he was testifying against the petitioner
because ‘‘no one was supposed to get
hurt.'' On cross-examination, he testified that he
had not been offered a particular plea deal in exchange for
his testimony, that he did not know how the charges pending
against him would be resolved, and that he was testifying
only because it was the ‘‘right thing to
Soler testified, the jury was excused, at defense
counsel's request, so that defense counsel could inquire
of the state, through the court, whether any benefits had
been promised to Soler in exchange for his testimony. The
prosecutor then explained that the state had discussed the
possibility of reducing Soler's charges but that no
promises had been made. Originally, Soler faced the same
charges as the petitioner, which included one count of felony
murder in violation of § 53a-54c, multiple counts of
robbery in the first degree in violation of § 53a-134
(a) (2), and one count of conspiracy to commit robbery in the
first degree in violation of General Statutes §§
53a-48 and 53a-134 (a) (2). Three months after testifying,
Soler pleaded guilty to two counts of robbery in the first
degree and attempt to commit robbery in the first degree. He
was sentenced to a total effective sentence of twenty years
incarceration, execution suspended after nine years, followed
by five years of probation, despite the state's request
for a longer prison sentence.
the petitioner's conviction of one count of felony
murder, two counts of robbery in the first degree, and one
count of attempt to commit robbery in the first degree, the
trial court, Sheldon, J., sentenced the petitioner
on March 10, 2006, to a total effective sentence of fifty
years incarceration, execution suspended after thirty-five
years, followed by five years of probation. On direct appeal,
our Supreme Court affirmed the judgment. State v.
Marquez, supra, 291 Conn. 167.
December 15, 2014, the petitioner filed the operative
petition for a writ of habeas corpus alleging, inter alia,
that the state had violated his due process rights and his
right to a fair trial by (1) failing to disclose favorable
evidence to him in violation of Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963),  and (2) failing to correct Soler's
allegedly false testimony that he had not been promised any
benefits by the state in exchange for his testimony. At the
habeas trial, testimony was presented from, among others,
Edward Narus, the senior assistant state's attorney who
had prosecuted Soler, and Soler's defense attorney,
Margaret P. Levy. Both testified that the state had discussed
possible plea deals with Soler, the essence of which was that
the state might reduce certain charges in exchange for an
agreement for him to testify against the petitioner. This
testimony established, however, that discussions of a plea
deal never progressed beyond preliminary discussions.
oral ruling, the habeas court, Fuger, J., denied the
petition for a writ of habeas corpus on May 5, 2015. The
habeas court expressly based its denial on the
‘‘key evidentiary finding'' that there
was no credible evidence that Soler had a deal with the state
to receive a benefit in exchange for his testimony and the
state, therefore, did not commit a Brady violation
by failing to disclose such an agreement when none existed.
On May 12, 2015, the habeas court denied certification to
appeal. This appeal followed.
appeal, the petitioner argues that the habeas court abused
its discretion by denying certification to appeal because he
presented sufficient evidence to render the issues in this
case debatable among jurists of reason. He argues that the
evidence presented establishes that the prosecution failed to
disclose that Soler had an agreement with the state that the
charges against him would be reduced, and that he ...