January 28, 2019
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 dismissing the petition in
part and denying the petition in part, from which the
petitioner, on the granting of certification, appealed to
this court. Affirmed.
S. Marcucci, assigned counsel, with whom was Naomi Fetterman,
for the appellant (petitioner).
A. Killen, senior assistant state's attorney, with whom,
on the brief, were Richard J. Colangelo, state's
attorney, and Angela R. Macchiarulo, senior assistant
state's attorney, for the appellee (respondent).
Lavine, Sheldon and Prescott, Js. [*]
petitioner, Joaquin Gudino, appeals following the granting of
his petition for certification to appeal from the judgment of
the habeas court dismissing in part and denying in part his
amended petition for a writ of habeas corpus. On appeal, the
petitioner claims, among other things, that the habeas court
improperly (1) dismissed count one of the amended petition
alleging ineffective assistance of trial counsel on the
ground that it constituted an improperly successive petition,
and (2) denied count two alleging ineffective assistance of
prior habeas counsel on the ground that the petitioner failed
to prove that he was prejudiced by the allegedly deficient
performance of both his prior habeas counsel and his trial
counsel. We disagree and, accordingly, affirm the judgment of
the habeas court.
relevant procedural history and facts are as follows. In 1996, the
petitioner was charged with murder in violation of General
Statutes § 53a-54a. The petitioner was represented in
the trial court by Attorney Robert A. Skovgaard. On January
28, 1998, the petitioner entered a guilty plea to a
substitute information charging him with manslaughter in the
first degree with a firearm in exchange for a recommended
sentence of twenty-five years of incarceration. When the
petitioner entered his plea, the court, Dean, J.,
indicated that its willingness to impose the recommended
sentence was contingent on its review of a presentence
investigation report (PSI). The case was continued for
preparation of the PSI and for sentencing.
April 24, 1998, the court informed the parties that it was
unwilling to impose the recommended sentence in light of
unfavorable information contained in the petitioner's
PSI. Accordingly, the court permitted the petitioner to
withdraw his guilty plea and to enter a plea of not guilty.
Following the withdrawal of the petitioner's guilty plea,
the state amended the information to reinstate the charge of
trial commenced on July 28, 1998. At trial, several witnesses
testified that the petitioner had shot the victim. Prior to
the close of evidence, the petitioner and the state reached a
new plea agreement, and the petitioner pleaded guilty to
murder in exchange for a recommended sentence of forty-five
years of incarceration. The court, Nigro, J.,
subsequently imposed the recommended sentence.
2000, the petitioner filed his first petition for a writ of
habeas corpus. See Gudino v. Warden,
Superior Court, judicial district of New Haven, Docket No.
CV-00-0435107-S (January 7, 2009). Attorney Paul R. Kraus was
appointed by the court to represent the petitioner.
March 13, 2007, the petitioner filed a three count amended
petition. Count one alleged that his trial counsel had
provided ineffective assistance of counsel. Specifically, the
petitioner asserted in count one that his trial counsel was
ineffective because he failed (1) to seek a dismissal of the
jury panel on the ground of alleged juror misconduct, (2) to
advise the petitioner that he would lose his right to raise
the juror misconduct issue on appeal if he pleaded guilty,
and (3) to advise the petitioner about the possibility of
pleading guilty conditionally in order to preserve his right
to raise the juror misconduct issue on appeal. Count two
alleged that the petitioner's decision to plead guilty
was not knowingly, voluntarily, and intelligently made. Count
three alleged that the trial court violated his due process
rights by failing to declare a mistrial due to alleged juror
habeas trial was conducted by the court, Hon. William L.
Hadden, judge trial referee. The court subsequently
denied the petition and the subsequent petition for
certification to appeal. This court dismissed the
petitioner's appeal from the court's denial of the
petition certification to appeal. Gudino v.
Commissioner of Correction, supra, 123 Conn.App.
August 19, 2014, the petitioner filed his second petition for
a writ of habeas corpus. It is this petition that underlies
the present appeal. The habeas court, Sferrazza, J.,
appointed a special public defender to represent the
petitioner, who, with counsel's assistance, filed a two
count amended petition, dated November 28, 2016, in which he
raised claims of ineffective assistance both by his trial
counsel and by his prior habeas counsel.
petitioner alleged in count one of his amended petition that
the performance of his trial counsel was constitutionally
deficient in numerous ways. Many of the allegations of
deficient performance centered on trial counsel's alleged
failure to investigate and present to Judge Dean information
regarding events leading up to the commission of the crime
and the petitioner's substance abuse history, mental
health, lack of education, learning disabilities, and
upbringing, that, according to the petitioner, would have
persuaded the court to impose the original recommended
sentence of twenty-five years of incarceration. The
petitioner alleged that there is a reasonable probability
that, but for the deficient performance of trial counsel,
Judge Dean would have imposed the recommended twenty-five
year sentence for manslaughter in the first degree with a
firearm, and, thus, the petitioner would not currently be
serving a forty-five year sentence for murder. In count two