Date December 6, 2016
from Superior Court, judicial district of Tolland, Oliver, J.
Tsimbidaros, assigned counsel, for the appellant
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
DiPentima, C. J., and Prescott and Alander, Js.
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.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
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.
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.
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.
indicated, this court affirmed the petitioner's judg-
ment of conviction on direct appeal. 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.
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. 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.
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
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.
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
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 . . . .'' 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 ...