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Abreu v. Commissioner of Correction

Court of Appeals of Connecticut

April 25, 2017


          Argued Date December 6, 2016

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

          Peter Tsimbidaros, assigned counsel, for the appellant (petitioner).

          Sarah Hanna, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Prescott and Alander, Js.


          PRESCOTT, J.

         The petitioner, Rafael Abreu, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus, which alleged ineffective assistance of prior habeas counsel.[1]The petitioner claims on appeal that the habeas court improperly rejected his claim that his prior habeas counsel provided ineffective assistance by failing to pursue adequately three claims of ineffective assistance of trial counsel. Specifically, the petitioner claims that trial counsel improperly failed (1) to conduct an adequate investigation regarding a potentially exculpatory witness, (2) to offer certain evidence in support of the petitioner's self-defense claim, and (3) to advise the petitioner properly regarding his potential sentence exposure should he proceed to trial. We affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to our disposition of the petitioner's appeal. The petitioner was charged with murder following the October, 2002 shooting death of Juan Carlos Martinez (victim) outside of a Waterbury cafe. State v. Abreu, 106 Conn.App. 278, 281, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008). The facts underlying the victim's death were set forth by this court in its opinion affirming the petitioner's judgment of conviction. ‘‘Several days prior to October 20, 2002, the [petitioner] and some others, including Elvis Castro and Castro's girlfriend, Vanessa Garcia, were at the Los Amigos pool hall in Waterbury. At some point, an altercation ensued between the [petitioner] and a group of patrons, which included the victim . . . . During the altercation, the [petitioner] was beaten and struck in the head with beer bottles.

         ‘‘On October 20, 2002, the [petitioner], Castro and a few others went to the Eldorado Cafe in Waterbury. While having drinks, the [petitioner] recognized one or more persons in the cafe as having been part of the group of people who had been at the pool hall days earlier and had beaten him. Thereafter, the [petitioner] exited the cafe. A confrontation subsequently occurred between the [petitioner], the victim and others. The [petitioner] shot the victim, and the victim died.'' (Footnote omitted.) Id.

         The petitioner never disputed that he shot the victim, but asserted that he was not the initial aggressor and had shot the victim in self-defense. Id., 281, 288. On May 20, 2005, a jury found the petitioner guilty of the lesser included offense of first degree manslaughter with a firearm in violation of General Statutes § 53a-55a (a). Id., 281-82. He was sentenced on August 8, 2005, to a total effective term of thirty-eight years of incarceration. Id., 282.

         As indicated, this court affirmed the petitioner's judg- ment of conviction on direct appeal.[2] Id., 281. On January 9, 2008, the petitioner filed a pro se petition for a writ of habeas corpus (first habeas petition). The court appointed Attorney Paul Kraus to represent the petitioner. The first habeas petition was tried before the habeas court, Sferrazza, J., which issued a memorandum of decision on August 1, 2011, denying the petition.

         Although the petitioner raised a number of claims in his first habeas petition, the sole claim pursued at the habeas trial was that the petitioner's trial counsel, Attorney Martin Minnella, had failed to investigate and to call as a defense witness Luis Vicente, a fourteen year old boy who had observed the shooting from an apartment located over the cafe.[3] Judge Sferrazza determined that the petitioner had failed to prove that he received ineffective assistance of trial counsel because, even if Vicente had testified, his testimony likely would have been damaging to the petitioner's self-defense claim considering that, in his statement to the police, the boy had stated that the petitioner had been chasing the victim at the time of the shooting. Accordingly, there was a reasonable strategic reason for Minnella not to call Vicente as a witness. The court also found that the petitioner had failed to prove that the absence of the boy's testimony prejudiced the petitioner in any appreciable way.

         The petitioner appealed, following the denial of certification. This court dismissed the appeal by memorandum decision. Abreu v. Commissioner of Correction, 140 Conn.App. 904, 62 A.3d 1182, cert. denied, 308 Conn. 917, 62 A.3d 1132 (2013).

         Prior to a final resolution of the appeal from the denial of his first habeas petition, the petitioner filed this second pro se habeas petition on August 17, 2012, commonly referred to as a ‘‘habeas on a habeas.'' Kad-dah v. Commissioner of Correction, 324 Conn. 548, 550, A.3d (2017). In it, he claimed that Kraus had provided ineffective assistance in his representation of the petitioner in his first habeas action. The court later appointed the petitioner habeas counsel. The respondent, the Commissioner of Correction, filed a return in which he asserted, by way of special defense, procedural default, waiver and res judicata.

         The habeas court, Oliver, J., conducted a trial on the second habeas petition on March 4, 2015. The only witness called to testify at the trial was the petitioner. The court admitted into evidence, without objection, exhibits that were premarked by agreement. Those exhibits included transcripts of the criminal trial and the trial on the prior habeas petition.

         On June 18, 2015, the habeas court issued a decision finding in favor of the respondent on all issues and denying in part and dismissing in part the petition. The court first dismissed all claims raised by the petitioner except those directed at prior habeas counsel, concluding that the petitioner was procedurally defaulted as to claims directly challenging trial counsel's performance and that ‘‘the petitioner has failed to sufficiently establish good cause to excuse the defaults . . . .''[4] The court nevertheless proceeded in the alternative to review several ‘‘defaulted'' claims raised against trial counsel, rejecting each on its merits. The habeas court then turned to the petitioner's claim that his prior habeas counsel provided ineffective assistance. After setting forth the proper standard of review, the habeas court concluded that ‘‘because the petitioner failed to set forth a prima facie case regarding the ineffective assistance of his trial counsel, he has not set forth a prima facie case of ineffective assistance of his habeas counsel. Additionally, a full review of the habeas trial transcript as well as the habeas trial ...

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