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Marquez v. Commissioner of Correction

Court of Appeals of Connecticut

January 10, 2017

JULIAN MARQUEZ
v.
COMMISSIONER OF CORRECTION

          Argued October 24, 2016

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

          James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellant (petitioner).

          Lisa 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.

          OPINION

          FOTI, J.

         The 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.

         The 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.[1] 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).[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).

         At the 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.[3] 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 do.''

         After 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.

         Following 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.

         On 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), [4] 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.

         In an 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.

         On 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 ...


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