Argued
September 13, 2019
Procedural
History
Amended
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Hartford 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.
Mark
M. Rembish, assigned counsel, for the appellant (petitioner).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Emily Trudeau, assistant state's attorney, for the
appellee (respondent).
Prescott, Bright and Devlin, Js.
OPINION
PER
CURIAM.
The
petitioner, Luis Perez, appeals following 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 (1) abused its discretion by denying his petition for
certification to appeal, (2) improperly concluded that his
trial counsel did not provide ineffective assistance, and (3)
improperly concluded that his plea was not coerced or
involuntary. We disagree and dismiss the appeal.
The
record discloses the following facts and procedural history.
The petitioner was charged in a substitute information with
capital felony and related charges. A death qualified jury
had been selected and trial was scheduled to begin on May 8,
2006. On May 5, 2006, the petitioner pleaded guilty to two
counts of murder and one count of assault in the first
degree. Subsequently, on July 21, 2006, the court sentenced
the petitioner to sixty years of imprisonment.
On
December 5, 2014, the petitioner filed his petition for writ
of habeas corpus. His amended petition, submitted on May 31,
2017, alleged that his trial counsel, Attorneys Barry Butler
and Miles Gerety, provided ineffective assistance of counsel
in that they threatened him and coerced his guilty plea in
violation of his right to due process of law. The habeas
court, Sferrazza, J., conducted a trial on November
9, 2017, during which it heard testimony from the petitioner;
his grandmother, Ana Hernandez; Butler; and Gerety. The only
evidence offered by the petitioner in support of his claim
was his testimony and the testimony of Hernandez. The
testimony indicated that, at some point prior to the
petitioner's guilty plea, Hernandez and the
petitioner's cousin were arrested for tampering with a
witness in the petitioner's case. The petitioner and
Hernandez both testified that they then met with Butler and
Gerety on May 4, 2006, and, during that meeting, the
attorneys threatened the petitioner that Hernandez and the
petitioner's cousin would go to prison if he did not
plead guilty. Butler and Gerety testified that they never
used threats of imprisonment for the petitioner's
relatives to coerce his guilty plea. Butler recalled that the
petitioner already had decided to plead guilty by the time of
the meeting, but had wanted to consult Hernandez before
entering his plea and requested the May 4, 2006 meeting. Both
attorneys further explained that they accommodated this
request, hoping that Hernandez' presence would ease the
petitioner's mind and ‘‘help him make his
decisions rationally . . . .''
Following
the habeas trial, the court issued a written memorandum of
decision. It found that the testimony of Butler and Gerety
was credible, while the testimony of the petitioner and
Hernandez was not credible. Consequently, the court
determined that the petitioner had failed to establish either
of the claims raised in his petition. The court thereafter
denied the amended petition for a writ of habeas corpus and
the petitioner's request for certification to appeal.
This appeal followed.
‘‘When
the habeas court denies certification to appeal, a petitioner
faces a formidable challenge, as we will not consider the
merits of a habeas appeal unless the petitioner establishes
that the denial of certification to appeal amounts to an
abuse of discretion.'' Jefferson v. Commissioner
of Correction, 144 Conn.App. 767, 772, 73 A.3d 840
(2013), cert. denied, 310 Conn. 929, 78 A.3d 856 (2013). An
abuse of discretion exists only when the petitioner can show
‘‘that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further.'' (Emphasis
omitted; internal quotation marks omitted.) Simms v.
Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).
‘‘[For this task] 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.''
Taylor v. Commissioner of Correction, 284 Conn. 433,
449, 936 A.2d 611 (2007).
On
determinations of witness credibility, ‘‘[t]he
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given to
their testimony. . . . Appellate courts do not second-guess
the trier of fact with respect to credibility.''
(Citation omitted; internal quotation marks omitted.)
Necaise v. Commissioner of Correction, 112 Conn.App.
817, 825-26, 964 A.2d 562, cert. denied, 292 Conn. 911, 973
A.2d 660 (2009). Accordingly, ‘‘[t]he issue of
credibility is not debatable among jurists of
reason'' and, thus, cannot be used to overturn the
decision of a habeas court. Washington v. Commissioner of
Correction, 166 Conn.App. 331, 344-45, 141 A.3d 956,
cert. denied, 323 Conn. 912, 149 A.3d 981 (2016).
The
petitioner's claims essentially challenge the habeas
court's determination of the credibility of the
witnesses. The habeas court expressly found that the
testimony of the petitioner and Hernandez, alleging that the
petitioner was coerced into pleading guilty, was not
credible. This was the only evidence offered to support the
petitioner's claims that his plea was coerced and that
his trial counsel were ineffective. Because the habeas court
is the sole arbiter of witness credibility and the
credibility of trial testimony is not debatable among jurists
of reason, we cannot conclude that the habeas court abused
its discretion by denying the petition for ...