March 20, 2018
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.
Tsimbidaros, for the appellant (petitioner).
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Brian Preleski, state's
attorney, and Kelli A. Masi, senior assistant state's
attorney, for the appellee (respondent).
Alvord, Keller and Prescott, Js.
petitioner, Marcos Mercado, appeals from the denial of his
petition for certification to appeal from the judgment of the
habeas court denying his 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 failing: (1) to take
appropriate measures at trial to preclude the introduction of
evidence of the petitioner's prior commission of crimes;
(2) to take appropriate measures to preclude, or failing to
call an expert to challenge, the state's introduction of
firearms and ballistics evidence; and (3) to adequately
preserve an issue for appellate review. We conclude that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal. Accordingly, we dismiss
following facts, as set forth by this court on the
petitioner's direct appeal, are relevant to our
resolution of the petitioner's claims. ‘‘On
December 26, 2007, the Southington police went to the
apartment of the victim, Thomas Szadkowski, at 81 Academy
Street to check on his welfare, as he had not reported to
work that day. The police found the victim in his kitchen,
lying dead of a gunshot wound. During their search of the
victim's apartment, the Southington and state police
observed a number of open windows on the screen of the
victim's computer. One window depicted an America Online
instant message exchange between the [petitioner] and the
victim, which took place between approximately 8:45 and 9:45
p.m. on December 24, 2007.
instant message screen revealed that the victim had invited
the [petitioner] to his apartment. Another open screen
displayed the [petitioner's] photograph and profile. The
[petitioner] accepted the invitation and drove to the
victim's apartment. After the [petitioner] and the victim
engaged in a sexual act, the [petitioner] retrieved a gun
from his motor vehicle, returned to the victim's
apartment and shot him. When he left the apartment, the
[petitioner] took the victim's Xbox 360 game console
(Xbox). On December 26, 2007, the [petitioner] gave the Xbox
to a former girlfriend, Laurel Brooks, as a gift for her
younger brother. The [petitioner] was arrested at his home in
New Britain on December 30, 2007. He subsequently signed a
written statement and confessed, during a videotaped
interview, to having shot the victim.'' (Footnote in
original.) State v. Mercado, 139 Conn.App.
99, 100-101, 54 A.3d 633, cert. denied, 307 Conn. 943, 56
A.3d 951 (2012).
court appointed Attorneys Christopher D. Eddy and Kenneth W.
Simon to represent the petitioner. In a substitute long form
information, the state charged the petitioner with murder in
violation of General Statutes § 53a-54a, felony murder
in violation of General Statutes § 53a-54c, and robbery
in the first degree in violation of General Statutes §
53a-134 (a) (2). After a trial, the jury found the petitioner
guilty of all three counts. The trial court, Espinosa,
J., merged the felony murder conviction into the murder
conviction and sentenced the petitioner to a total effective
sentence of seventy years incarceration on the murder and
robbery charges. The petitioner appealed from the judgment of
conviction, which this court affirmed. See id., 100,
107. The petitioner then petitioned for certification to our
Supreme Court, which that court denied. State v.
Mercado, 307 Conn. 943, 56 A.3d 951 (2012).
March 3, 2016, the petitioner filed a third amended petition
for a writ of habeas corpus, in which he alleged the
ineffective assistance of his trial counsel. Specifically, as
summarized by the habeas court in its memorandum of decision,
the petitioner claimed that his trial counsel provided him
with ineffective assistance by ‘‘failing to
object, exclude, or move to limit the use of testimony
elicited from the petitioner on cross-examination and from
Laurel Brooks, in the state's rebuttal, regarding whether
the petitioner had acknowledged to Brooks having committed
robberies in the past . . . failing to object, exclude, or
move to limit the use of evidence pertaining to the
petitioner's possession of a .223 caliber [AR-15]
Bushmaster assault rifle seized incident to his arrest . . .
failing to present testimony from a firearms expert to prove
that [the] Bushmaster rifle was not the murder weapon; and .
. . failing to investigate adequately the possibility that
Richard Diaz was the real culprit.''
commenced before the habeas court, Sferrazza, J., on
October 3, 2016. The court heard testimony from Lieutenant
Joseph Rainone, a Waterbury police officer who testified at
the petitioner's criminal trial as a firearms expert for
the state; Dr. Albert Harper, a firearms expert; Attorneys
Eddy and Simon; Diaz; Carmen Baez, an investigator for the
Office of the Public Defender; Attorney Sebastian DeSantis, a
Connecticut criminal defense attorney; and the petitioner.
trial, in a written memorandum of decision dated October 13,
2016, the habeas court denied the petition for a writ of
habeas corpus. The court determined that the petitioner had
failed to establish that trial counsel's claimed errors
prejudiced him. The petitioner then filed a petition for
certification to appeal, which the habeas court denied. This
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, [the petitioner] must demonstrate that the denial of
his petition for certification 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 the merits. . . . 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. . . . In
determining whether the habeas court abused its discretion in
denying the petitioner's request for certification, we
necessarily must consider the merits of the petitioner's
underlying claims to determine whether the habeas court
reasonably determined that the petitioner's appeal was
frivolous.'' (Internal quotation marks omitted.)
Brown v. Commissioner of Correction, 179
Conn.App. 358, 364, 179 A.3d 794, cert. denied, 328 Conn.
919, 181 A.3d 91 (2018).
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 ...