October 26, 2016
from Superior Court, judicial district of Tolland, Cobb, J.
T. Fetterman, for the appellant (petitioner).
A. Chiarenza, assistant state's attorney, with whom, on
the brief, were Gail P. Hardy, state's attorney, and Jo
Anne Sulik, supervisory assistant state's attorney, for
the appellee (respondent).
Alvord, Prescott and Norcott, Js.
petitioner, Alberto Ampero, appeals from the judgment of the
habeas court denying, in part, his amended petition for a
writ of habeas cor-pus. On appeal, the petitioner claims that
the habeas court improperly (1) concluded that his trial
counsel provided effective assistance, (2) rejected his claim
of actual innocence, and (3) rejected his claim that his due
process rights were violated by the use of allegedly perjured
testimony. We disagree and, accordingly, affirm the judgment
of the habeas court.
following facts and procedural history are relevant to the
disposition of the petitioner's claims. On August 27,
2009, the petitioner forced the victim and her three children
to enter an apartment building and, after allowing them to
leave the following morning, fled on foot from pursuing
police. State v. Ampero, 144 Conn.App. 706,
708-12, 72 A.3d 435, cert. denied, 310 Conn. 914, 76 A.3d 631
(2013). During the course of the night, the petitioner also
grabbed the victim by her neck, choked her and left marks on
her neck. Id. 710. The state charged the petitioner
with kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A), kidnapping in the second
degree in violation of General Statutes § 53a-94 (a),
strangulation in the second degree in violation of General
Statutes § 53a-64bb, and interfering with an officer in
violation of General Statutes § 53a-167a. Following a
jury trial, the petitioner was found guilty of kidnapping in
the second degree and interfering with an
officer. Id., 712. He was found not guilty
of the remaining charges. This court affirmed the
petitioner's convictions on direct appeal. Id.
5, 2014, the petitioner filed the operative three count
second amended petition for a writ of habeas corpus. In it,
the petitioner alleged ineffective assistance of his trial
counsel,  R. Bruce Lorenzen, at trial, that he was
actually innocent, and that his due process rights were
violated due to the use of perjured testimony. After a two
day habeas trial in December, 2014, the habeas court issued a
memorandum of decision denying, in part, the petitioner's
petition for a writ of habeas corpus. This appeal followed.
Additional facts will be set forth as necessary.
petitioner first claims that the habeas court improperly
concluded that Lorenzen provided effective assistance of
counsel. Specifically, he argues that his counsel was
deficient by failing (1) to request limiting instructions
regarding the introduction of prior misconduct evidence; (2)
to present exculpatory evidence, namely, a tape of the
victim's mother's 911 call, which allegedly would
have undermined her trial testimony; and (3) to present
exculpatory witnesses who could impeach the victim's
testimony that she was not involved in a romantic
relationship with the petitioner during the summer of 2009,
when the incident occurred. The respondent, the Commissioner
of Correction, argues that the habeas court properly denied
the second amended petition because the petitioner's
claim of ineffective assistance of counsel overlooks
‘‘the fact that counsel's overall
performance, which resulted in a finding of not guilty as to
two of the four charges faced by the petitioner, indicates
that counsel rendered effective and capable
advocacy'' and fails to afford ‘‘the
proper level of deference to counsel's strategic
decisions . . . [in] an attempt to second-guess counsel's
trial tactics after an adverse result.'' We agree
with the respondent and affirm the court's determination
that the petitioner's trial counsel provided effective
begin by setting forth our standard of review.
‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . . The
application of the habeas court's factual findings to the
pertinent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary
review.'' (Internal quotation marks omitted.)
Horn v. Commissioner of Correction, 321
Conn. 767, 775, 138 A.3d 908 (2016).
legal principles that govern an ineffective assistance claim
are well settled. See 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.
. . .
second prong is . . . satisfied if the petitioner can
demonstrate that there is a reasonable probability that, but
for that ineffectiveness, the outcome would have been
different.'' (Citation omitted; internal quotation
marks omitted.) Horn v. Commissioner of
Correction, supra, 321 Conn. 775-76.
the performance prong, ‘‘[j]udicial scrutiny of
counsel's performance must be highly deferential. . . . A
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. . . . [A] court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might be
considered a sound trial strategy.'' (Internal
quotation marks omitted.) Spearman v.
Commissioner of Correction, 164 Conn.App. 530, 539,
138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284
petitioner must prevail on both Strickland prongs.
Lewis v. Commissioner of Correction, 165
Conn.App. 441, 451, 139 A.3d 759, cert. denied, 322 Conn.
901, 138 A.3d 931 (2016). Put differently, ‘‘[i]t
is axiomatic that courts may decide against a petitioner on
either prong, whichever is easier.'' Id.
petitioner first argues that Lorenzen provided ineffective
assistance of counsel by failing to request limiting
instructions regarding the introduction of evidence of prior
misconduct that occurred during the relationship between the
petitioner and the victim. The respondent, in turn, argues
that the habeas court did not err in concluding that counsel
exercised a reasonable trial strategy in not seeking a
limiting instruction. We conclude that the petitioner cannot
prove prejudice, and, therefore, the habeas court did not err
in its determination that Lorenzen did not provide
ineffective assistance of counsel.
limiting instructions often mitigate the prejudicial impact
of evidence of prior misconduct.'' State v.
Ryan, 182 Conn. 335, 338 n.5, 438 A.2d 107 (1980).
The petitioner argues that prior misconduct testimony was
‘‘pervasive throughout the trial'' and a
limiting instruction should have been given. Specifically, he
notes that when the victim testified about her April, 2009
breakup with him, she described how the petitioner took both
of her cell phones and broke them in half and slapped her in
the face. The victim and her mother testified that,
after that incident, her mother called the police, and the
petitioner was subsequently arrested. A no contact order
between the victim and the petitioner was imposed as a
condition of his subsequent probation. The petitioner also
notes that the victim's mother testified that the victim
‘‘was scared of [the petitioner]. . . . He . . .
had been in jail.'' Officer John Zweibelson, the lead
investigator in the April, 2009 incident, testified that
during that incident he had seized a lighter that he
initially thought was a gun. Finally, responding Officer
Robert Quaglini testified: ‘‘Well, we got [the
petitioner's] name, date of birth, and we were able to
pull up a picture-his [Department of Correction] picture on
the computer within the cruiser.'' The petitioner
claims that this information ‘‘clearly inform[ed]
the jury that [the petitioner] ha[d] been previously
arrested, convicted, and sentenced'' and that
‘‘the jury was then aware that the subject
conviction involved the [victim].''
petitioner argues that the use of such prior misconduct
evidence was ‘‘inherently prejudicial''
and necessitated a limiting instruction. He misapprehends our
holding in State v. Huckabee, 41 Conn.App.
565, 574, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d
1009 (1996), for the proposition that trial counsel must
request a limiting instruction when prior misconduct evidence
is presented, and, as a result, that failing to request one
was per se prejudicial for the purposes of an ineffective
assistance of counsel claim. In Huckabee, this court
determined that the state's introduction of evidence of a
defendant's prior escapes from a juvenile detention
center was proper after the defendant ‘‘opened
the door to such inquiry, '' but that the
‘‘introduction of the . . . escapes prior to this
prosecution, however, should have been accompanied by a
limiting instruction that the evidence was to be used solely
for the purpose of evaluating the defendant's
veracity'' and that the ‘‘nature of this
evidence . . . requires a limiting instruction.''
Id. The petitioner fails to recognize, however, that
in Huckabee, which was a direct criminal appeal, not
a habeas action, the defendant raised an evidentiary claim
that required him to prove that it was
‘‘reasonably probable that the jury was misled by
the failure to give a limiting instruction.''
Id. 575. Here, the petitioner is not making an
evidentiary claim. Rather, he is claiming that Lorenzen
provided ineffective assistance of counsel and that claim
requires a standard different from the claim in
Huckabee. Instead of determining whether it was
‘‘reasonably probable that the jury was
misled'' by the lack of a limiting instruction, we
are charged with the two prong Strickland standard
and may decide the matter against the petitioner on either
the performance or the prejudice prong. Lewis v.
Commissioner of Correction, supra, 165
present case, we conclude that the petitioner's claim
fails because the state's case against the petitioner was
strong and thus the petitioner cannot demonstrate prejudice.
We do not agree with the petitioner that the
‘‘introduction of prior acts of misconduct and
prior incarceration effectively bolstered a case which found
no other support beyond the mere accusation [of the
victim].'' A reasonable jury could have found the
petitioner guilty on the basis of the other, non-prior
misconduct evidence presented at trial even if the evidence
of the petitioner's prior misconduct was not introduced
or was properly limited.
testified that he and Officer Robert Iovanna, the other
responding officer, went to 104 Ward Street in search of the
petitioner after interviewing the victim and observed the
petitioner standing on the front steps. Upon approaching the
petitioner, the petitioner ‘‘made eye contact and
he immediately spun around [and] ripped the door
open.'' Quaglini stated that he ordered the
petitioner to stop, but the petitioner did not comply and
instead ‘‘ran up the stairs.'' Quaglini
‘‘chased him up the stairs into the apartment,
ran through the apartment down the back stairs out of the
back of the house [and] ran back around to Ward
Street.'' Quaglini further testified that the
petitioner was ‘‘hopping fences'' and
running through backyards in an effort to evade him. Quaglini
followed him to a parking lot located at 913 Broad Street and
found the petitioner hiding under a motor vehicle.
struggle ensued. The officers attempted to pull the
petitioner out by the feet, but they had to strike him with
Quaglini's baton in order to extract him and place him in
handcuffs. Zweibelson then transported the victim to the
scene to identify the petitioner. Zweibelson testified that,
when he arrived with the victim, the petitioner, without
prompting, ‘‘stated that he didn't do it and
that he just wanted . . . to be with her and that . . . they
did have a verbal argument, altercation that night over . . .
the state of the relationship.'' ...