November 28, 2017
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Fuger, J.; judgment denying the petition; thereafter,
the court denied the petition for certification to appeal,
and the petitioner appealed to this court. Appeal dismissed.
Tsimbidaros, for the appellant (petitioner).
A. Chiarenza, assistant state's attorney, with whom, on
the brief, were Gail P. Hardy, state's attorney, and
Tamara A. Grosso, assistant state's attorney, for the
Alvord, Bright and Sullivan, Js.
petitioner, Derek Humble, appeals from 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. On appeal, the petitioner claims that the
habeas court abused its discretion in denying his petition
for certification to appeal and improperly rejected his claim
that his trial counsel rendered ineffective assistance.
Specifically, the petitioner claims that his trial counsel
rendered ineffective assistance by (1) failing to adequately
investigate exculpatory evidence, and (2) misadvising him to
plead guilty to murder. We conclude that the habeas court did
not abuse its discretion in denying the petition for
certification to appeal. Accordingly, we dismiss the appeal.
record reveals the following facts and procedural history. On
March 24, 2004, the petitioner shot and killed the victim,
Victor Blue, inside Melissa's Market in Hartford. The
state charged the petitioner, in two criminal cases, with
murder in violation of General Statutes § 53a-54a,
criminal use of a firearm in violation of General Statutes
§ 53a-216, criminal possession of a firearm in violation
of General Statutes § 53a-217, and escape in the first
degree in violation of General Statutes §
53a-169. The court appointed Attorney Robert J.
Meredith of the Public Defender's Office to represent the
petitioner. On May 26, 2005, the petitioner pleaded guilty,
pursuant to the Alford doctrine,  to murder and
criminal use of a firearm. The petitioner also pleaded guilty to
carrying a pistol without a permit and escape in the first
time of the plea, the court, Miano, J., canvassed
the petitioner, asking in relevant part whether the
petitioner had an opportunity to speak with counsel, whether
the petitioner was satisfied with counsel, whether the
petitioner understood the state's allegations, and
whether the petitioner understood that, by pleading guilty,
he was giving up his rights to have a trial by jury or judge,
to confront and cross-examine the state's witnesses, to
remain silent, to have the state prove every element of the
offenses beyond a reasonable doubt, and to present a
defense. The court also explained the factual bases
for the pleas, the elements of the crimes charged, and the
maximum sentences the petitioner could receive. The court
explained: ‘‘[Y]our exposure here for these
crimes, if my arithmetic is correct, is not less than
twenty-five years, nor more than seventy-five years, plus
fines.'' After concluding the canvass, the court
found that the petitioner's pleas were knowing,
voluntary, and intelligently made with the effective
assistance of counsel, and accepted the petitioner's
guilty pleas. The court sentenced the petitioner to thirty
years imprisonment pursuant to an agreed upon recommendation
between the petitioner and the state. The petitioner did not
file a direct appeal from his conviction.
September 28, 2015, the petitioner filed an amended petition
for a writ of habeas corpus, in which he alleged one count of
ineffective assistance of his trial counsel. Specifically, he
claimed that Attorney Meredith failed to conduct an adequate
investigation of the case, and to interview all eyewitnesses
to the shooting. The petitioner also claimed that Attorney
Meredith advised him to plead guilty without thoroughly
investigating a potential defense of
self-defense. A trial commenced before the habeas court,
Fuger, J., on June 14, 2016.
habeas court was presented with evidence of the following
facts. The killing was the result of ‘‘bad
blood'' that existed between the petitioner and his
friends and the victim and his friends. On March 23, 2004, in
response to learning that the victim ‘‘had family
members or so that . . . wanted to do bodily harm''
to him, the petitioner traveled to Clark Street in Hartford,
where he knew the victim hung out, to ‘‘shake him
up a little bit.'' The petitioner robbed the victim
at gunpoint. Later that evening, as the petitioner was
walking with his friend, Jason Barclay, a man
‘‘came out the-one of the driveways, made a
comment, pulled out a gun and started shooting at
us.'' The petitioner returned fire, heard police
sirens, and ran.
next day, on March 24, the petitioner left his cell phone at
Melissa's Market to charge. Later that day, Patrick Ward,
a friend of the petitioner, informed him that the victim had
been bragging about shooting at him the night before. When
the petitioner returned to the store to retrieve his cell
phone, Raymond Rodriguez informed the petitioner that the
victim and another man were at the store looking for him
earlier that day. The petitioner observed the victim and
Naquan Hartage, whom the petitioner knew, exit the store. The
victim and the petitioner ‘‘made eye
contact.'' The petitioner entered the store to
retrieve his cell phone. As the petitioner was reaching for
his cell phone, it rang. Ward was calling to warn the
petitioner that the victim was returning to the store. The
petitioner observed the victim walking toward the store. The
petitioner was standing in a ‘‘little cubbyhole
off to the side'' near the entrance of the store.
According to the petitioner, the victim entered the store,
looked at the petitioner, took a few steps, turned around,
and reached for a gun. At that point, the petitioner pulled
out a gun and shot the victim multiple times. The petitioner
fled the store. As the petitioner was running out of the
store, he noticed Hartage running into the store.
the shooting, Hartage gave a voluntary statement to the
police in which he identified the petitioner as the
shooter. The police arrested the petitioner on
March 31, 2004, in Mississippi. After police arrested the
petitioner, he signed a voluntary statement in which he
confessed to killing the victim, but claimed to have done so
in self-defense. On May 18, 2004, Ward also gave a voluntary
statement to the police, in which he corroborated the
petitioner's claim that, on March 24, the victim was
seeking the petitioner out in retaliation for the March 23
robbery. Ward also told police that immediately
following the shooting, he ran into Melissa's Market and
observed Hartage removing a gun from the victim's hand.
The police did not recover a gun on the victim's body.
oral decision, the habeas court denied the amended petition
for a writ of habeas corpus, finding that the petitioner had
failed to satisfy the requirements of Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The petitioner then filed a petition for
certification to appeal, which the habeas court denied. This
first set forth our standard of review. ‘‘Faced
with a habeas court's denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by our
Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must then
prove that the decision of the habeas court should be
reversed on its merits.'' (Internal quotation marks
omitted.) Morris v. Commissioner of
Correction, 131 Conn.App. 839, 842, 29 A.3d 914, cert.
denied, 303 Conn. 915, 33 A.3d 739 (2011). ‘‘A
petitioner may establish an abuse of discretion by
demonstrating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are adequate
to deserve encouragement to proceed further.''
(Internal quotation marks omitted.) Clinton S. v.
Commissioner of Correction, 174 Conn.App. 821, 826,
167 A.3d 389, cert. denied, 327 Conn. 927, 171 A.3d 59
examine the petitioner's underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in denying the
petition for certification to appeal. Our standard of review
of a habeas court's judgment on ineffective assistance of
counsel claims is well settled. In a habeas appeal, this
court cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous, but our review of
whether the facts as found by the habeas court constituted a
violation of the petitioner's constitutional right to
effective assistance of counsel is plenary.''
(Internal quotation marks omitted.) Morris v.
Commissioner of Correction, supra, 131 Conn.App.
order to determine whether the petitioner has demonstrated
ineffective assistance of counsel [when the conviction
resulted from a guilty plea], we apply the two part test
annunciated by the United States Supreme Court in
Strickland and Hill [v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d
(1985)]. . . . In Strickland, which applies to
claims of ineffective assistance during criminal proceedings
generally, the United States Supreme Court determined that
the claim must be supported by evidence establishing that (1)
counsel's representation fell below an objective standard
of reasonableness, and (2) counsel's deficient
performance prejudiced the defense because there was
reasonable probability that the outcome of the proceedings
would have been different had it not been for the deficient
performance. . . .
satisfy the performance prong under Strickland-Hill,
the petitioner must show that counsel's representation
fell below an objective standard of reasonableness. . . . A
petitioner who accepts counsel's advice to plead guilty
has the burden of demonstrating on habeas appeal that the
advice was not within the range of competence demanded of
attorneys in criminal cases. . . . The range of competence
demanded is reasonably competent, or within the range of
competence displayed by lawyers with ordinary training and
skill in the criminal law. . . . Reasonably competent
attorneys may advise their clients to plead guilty even if
defenses may exist. . . . A reviewing court must view
counsel's conduct with a strong presumption that it falls
within the wide range of reasonable professional assistance.
. . .
satisfy the prejudice prong [under Strickland-Hill],
the petitioner must show a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.''
(Citations omitted; internal quotation marks ...