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Diaz v. Commissioner of Correction

Court of Appeals of Connecticut

July 18, 2017

LUIS DIAZ
v.
COMMISSIONER OF CORRECTION

          Argued March 7, 2017

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

          James E. Mortimer, for the appellant (petitioner).

          James M. Ralls, assistant state's attorney, with whom, on the brief, was John Smriga, state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee (respondent).

          Lavine, Keller and Pellegrino, Js.

         Syllabus

         The petitioner, who had been convicted of murder and firearm offenses in connection with a shooting incident in Bridgeport, sought a writ of habeas corpus, claiming, inter alia, that the habeas court abused its discretion in denying his petition for certification to appeal because his right to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense as required by Brady v. Maryland (373 U.S. 83');">373 U.S. 83). During the petitioner's criminal trial, several witnesses, including O, gave testimony implicating the petitioner in the shooting. Specifically, O, who was incarcerated at the time of the petitioner's trial, testified that he had observed the petitioner shoot the victim. The habeas court rendered judgment denying the petition. Thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.

         Held:

1. The petitioner failed to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal with respect to the petitioner's claim that his right to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense, namely, that an express or implied agreement existed between the state and O, in exchange for O's testimony at the petitioner's criminal trial; the petitioner's claim to the contrary notwithstanding, the habeas court focused on the claim as framed by the petitioner's amended petition, and did not limit its analysis to the existence of a written or formal agreement between the state and O, or the existence of a plea agreement, as the court referred to the lack of any ‘‘undisclosed understandings'' or ‘‘clandestine plea arrangements, '' and the fact that ‘‘no deals were struck'' between the state and O, and the circumstantial evidence, including the fact that, several months after O testified for the state at the petitioner's criminal trial, the state agreed that O's sentence modification agreement should be considered by the sentencing court, did not compel a finding that, prior to the petitioner's criminal trial, the state and O had come to an understanding that required disclosure under Brady, because the testimony of both S, the senior assistant state's attorney who prosecuted the petitioner in his underlying criminal trial, and O was consistent in their denial that, prior to the petitioner's trial, any agreement had been reached or that any quid pro quo existed other than that which was disclosed to the jury at the petitioner's criminal trial, namely, that O hoped that the state would make O's cooperation known in the future; moreover, any evidence that S was motivated to acquiesce in O's sentence modification application following the petitioner's trial did not implicate a duty to disclose under Brady at the time of trial; furthermore, this court did not consider the petitioner's alternative claims that the state solicited O's false testimony that no agreement had made with the state and that the state failed to correct that false testimony because those claims were not distinctly raised before the habeas court and the court did not consider those claims in denying the petition for a writ of habeas corpus.
2. The petitioner failed to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal with respect to the petitioner's claim that counsel in the prior habeas proceeding rendered ineffective assistance because they failed to identify, understand, research, raise, or argue the Brady claim concerning O: even if the petitioner could demonstrate that counsel performed deficiently with respect to the Brady claim concerning O, the habeas court properly determined that the petitioner was unable to demonstrate that he was prejudiced by counsel's performance because no Brady violation occurred.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, and tried to the court, Sferrazza, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          OPINION

          KELLER, J.

         The petitioner, Luis Diaz, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. First, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal because his right to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense, namely, that an express or implied agreement existed between the state and one of the state's witnesses, Eddie Ortiz, in exchange for Ortiz' testimony at the petitioner's criminal trial. In connection with this claim, the petitioner also claims that the state failed to correct false testimony provided by Ortiz concerning the existence of such an agreement. Second, the petitioner claims that his right to the effective assistance of counsel was violated by virtue of representation afforded to him by counsel in a prior habeas proceeding. The petitioner claims that prior habeas counsel failed to adequately pursue his claim that his right to due process was violated by the state's failure to disclose an agreement reached with Ortiz prior to the petitioner's trial. Because we conclude that the court's denial of the petition for certification to appeal reflected a proper exercise of its discretion, we dismiss the appeal.

         The following underlying facts and procedural history are relevant to the present appeal. In 2007, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a pistol in violation of General Statutes § 53a-217c. The petitioner was sentenced to a total effective term of incarceration of seventy years. Following the petitioner's direct appeal to our Supreme Court pursuant to General Statutes § 51-199 (b) (3), that court affirmed the judgment of conviction. State v. Diaz, 302 Conn. 93, 25 A.3d 594 (2011).

         Our Supreme Court set forth the following facts underlying the petitioner's conviction: ‘‘On the evening of January 11, 2006, the victim, Philip Tate, was shot and killed outside a bar known as the Side Effect West in the city of Bridgeport. Thereafter, the [petitioner] was arrested and charged with murdering the victim, carrying a pistol without a permit and criminal possession of a pistol or revolver.

         ‘‘In March, 2006, Corey McIntosh gave a statement to the police indicating that the [petitioner] had been the shooter. At that time, McIntosh was on federal probation and had received a three year suspended sentence for possessing narcotics in Connecticut. McIntosh testified at the [petitioner's] trial that he had seen the [petitioner] outside the Side Effect West immediately before the shooting and had heard shots as he entered the bar. He then ran out the back door and saw the [petitioner] running down the street with a gun in his hand. Additional state narcotics charges were pending against McIntosh at the time of trial. He testified that, while no promises had been made in connection with the pending charges, he was hoping to receive some consideration in exchange for his testimony.

         ‘‘At some point after July, 2006, Eddie Ortiz wrote a letter to the prosecutor's office indicating that he had information about the murder. He was incarcerated at the time and stated in his letter that he was looking for some consideration in exchange for his testimony. Ortiz testified at the [petitioner's] trial that he had seen the [petitioner] shoot the victim. He also testified that, during the trial, he had been placed in the same holding cell as the [petitioner], who said to him, ‘You know what I did' and ‘I know where you live at.' In addition, Ortiz testified that the [petitioner] had offered him $5000 not to testify. He further testified that the prosecutor's office had not promised him anything in exchange for his testimony and that he had been told that it would be up to a judge whether he would receive any benefit, such as a sentence modification. He had expectations, however, that his testimony would be taken into consideration.

         ‘‘Approximately six months after the murder, James Jefferson asked his attorney to inform Harold Dimbo, a detective with the Bridgeport [P]olice [D]epartment, that Jefferson had information about the murder. Jefferson, who was incarcerated in Connecticut on domestic violence charges at the time, was subject to lifetime parole in New York in connection with a conviction on narcotics charges in that state. Dimbo visited Jefferson in prison and Jefferson agreed to give a statement about the shooting. Dimbo made no promises to Jefferson. In September, 2006, the domestic violence charges were dismissed for lack of evidence. Thereafter, Jefferson testified at the [petitioner's] trial that he had seen the [petitioner] and the victim outside Side Effect West immediately before the shooting. He also saw the [petitioner] shoot at someone, but he did not see the victim at that point. At the time of trial, Jefferson was incarcerated in Connecticut for violating his parole in New York.

         ‘‘McIntosh, Ortiz and Jefferson were the only witnesses who identified or implicated the [petitioner] as the shooter. The [petitioner's] girlfriend, Shenisha McPhearson, testified that the [petitioner] had been with her at her apartment at the time of the shooting. The state presented no physical evidence to tie the [petitioner] to the shooting and the gun used in the shooting was never recovered.'' (Footnote omitted.) Id., 95-97.

         In a prior habeas corpus proceeding, in which the petitioner was represented by Attorneys William T. Koch, Jr., and W. Theodore Koch III, the habeas court denied the petitioner relief on May 16, 2012. After the habeas court denied the petitioner's petition for certification to appeal from that judgment, the petitioner appealed to this court, which dismissed the appeal. Diaz v. Commissioner of Correction, 152 Conn.App. 669, 100 A.3d 856, cert. denied, 314 Conn. 937, 102 A.3d 1114 (2014).

         In the present action, on June 7, 2013, the petitioner filed a petition for a writ of habeas corpus. On February 9, 2015, the petitioner filed a three count amended petition. In count one, he alleged that prior habeas counsel rendered ineffective assistance in ten different ways. In count two, the petitioner alleged that his right to due process was violated because the prosecutor failed to disclose evidence that was favorable to the defense ‘‘with respect to an express or implied agreement'' with state's witnesses Ortiz, McIntosh, and Jefferson. In count three, the petitioner, referring to evidence that he alleged to have discovered following his conviction, claimed that he was actually innocent of the charges underlying his conviction and incarceration. During the trial, the petitioner withdrew the third count of the petition.

         In his return, the respondent, the Commissioner of Correction, denied the substantive allegations set forth in each count of the petition. By way of special defenses, the respondent alleged that the claims set forth in count two were barred by the doctrines of successive petition and abuse of the writ because the claims either were previously litigated in the prior habeas proceeding or the petitioner had a full and fair opportunity to litigate such claims in that prior proceeding. Alternatively, the respondent alleged that the claims set forth in count two were barred by the doctrine of procedural default because the petitioner failed to raise such claims in the prior habeas proceeding. In reply, the petitioner denied the respondent's special defenses.

         A trial before the habeas court took place on August 18, 2015, and October 22, 2015. In addition to receiving evidence that was non testimonial in nature, the court heard testimony from Donald Collimore, an assistant state's attorney who prosecuted charges against McIntosh, beginning in 2006; Brian Kennedy, an assistant state's attorney who, at Collimore's direction, entered a nolle prosequi in McIntosh's prosecution; W. Theodore Koch III, who represented the petitioner in his prior habeas appeal; Howard Stein, a senior assistant state's attorney who prosecuted the petitioner in the criminal case underlying the present action; Ortiz; and Jefferson. Later, the petitioner and the respondent submitted post-trial briefs to the court.

         In its memorandum of decision denying the amended petition, the court stated: ‘‘In the present action, the petitioner alleges, in the first count, that his previous habeas counsel . . . rendered ineffective assistance and, in the second count, that his due process rights as enunciated in Brady v. Maryland, [373 U.S. 83');">373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], were breached.''

         First, the court addressed the merits of the petitioner's Brady claim. In relevant part, the court stated: ‘‘The petitioner asserts that three prosecution witnesses, viz. . . . Ortiz . . . McIntosh, and . . . Jefferson, were offered secret plea dispositions regarding their own criminal files in exchange for their testimony against the petitioner at his criminal trial in 2007. During the present habeas hearing . . . Collimore . . . Kennedy . . . Stein . . . Ortiz . . . and . . . Jefferson . . . all testified that no such undisclosed understandings existed at the time their cases and the petitioner's criminal case were pending. [Koch] . . . also testified that he discovered no evidence supporting such clandestine plea arrangements when he represented the petitioner in his previous habeas case. No credible evidence was adduced during the present hearing to support these assertions of Brady violations nor attacking the credibility of the above listed witness' testimony to the contrary.

         ‘‘Although certain favorable plea negotiations occurred with respect to Ortiz, McIntosh, and Jefferson sometime after the petitioner's criminal trial concluded, the court finds that no deals were struck between any of these witnesses and the prosecution in exchange for their testimony [at the petitioner's criminal trial]. Indeed, because Jefferson and McIntosh had given written statements to the police implicating the petitioner as the shooter shortly after the homicide, the prosecutor handling the petitioner's case had no pressing need to proffer promises to these witnesses because of the holding of State v. Whelan, 200 Conn. 743, 753 [513 A.2d 86');">513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598] (1986).

         ‘‘Therefore, the court determines that the petitioner has failed to prove the factual underpinnings of his Brady violation claim, and the court denies the amended petition as to the second count.'' (Emphasis in original.)

         Discussing the merits of the first count of the petition, alleging ineffective assistance of prior habeas counsel, the court began its analysis by setting forth relevant principles of law. The court observed that the petitioner had ‘‘a herculean task'' of demonstrating that he was prejudiced by the deficient performance of prior habeas counsel and trial counsel. (Internal quotation marks omitted.) Then, the court stated: ‘‘[T]he petitioner avers that his previous habeas counsel were professionally deficient by failing to discover and present evidence, in a variety of forms, as to the existence of implied plea agreements between the state and Ortiz, McIntosh, and Jefferson; by misadvising the petitioner with respect to the availability of sentence review; by failing to assert an ineffective assistance claim against appellate counsel . . . for her failure to lay a proper foundation for a Brady violation argument through rectification of the trial records; and by failing to present expert witnesses regarding the purported insufficiencies of trial and appellate counsel. . . .

         ‘‘This court's factual findings that no Brady violation occurred, as elucidated above, also requires the court to deny habeas relief with respect to ineffective assistance premised on the existence of such violations. . . .

         ‘‘Per stipulation between the litigants, the petitioner's opportunity for sentence review was restored. Therefore, this claim of ineffective assistance has been dealt with previously. . . .

         ‘‘The final specification against habeas counsel is that they failed to engage legal experts to evaluate and testify as to the deficient performance of trial and/or appellate counsel. However, in this present habeas case, the petitioner also presented no such expert witnesses with respect to trial counsel, appellate counsel, or previous habeas counsel. Consequently, this averment lacks any factual foundation whatsoever. [This] court would be left to speculate as to whether such expert testimony would have been available [to prior trial, appellate, and habeas counsel], and as to the substance of such supposed testimony. It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding . . . . Therefore, this allegation of ineffective ...


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