Perez v. Commissioner of Correction ( 2019 )

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LUIS PEREZ v. COMMISSIONER OF CORRECTION
(AC 41160)
Prescott, Bright and Devlin, Js.
Syllabus
The petitioner, who previously had been convicted on a guilty plea of two
counts of murder and one count of assault in the first degree, sought
a writ of habeas corpus, claiming, inter alia, ineffective assistance of
trial counsel. During the trial of the present case, the petitioner and
A, the petitioner’s grandmother, both testified that they met with the
petitioner’s trial counsel, who threatened the petitioner that A and the
petitioner’s cousin would go to prison if he did not plead guilty. The
habeas court rendered judgment denying the amended habeas petition
and, thereafter, denied the petition for certification to appeal, and the
petitioner appealed to this court. Held that the habeas court did not
abuse its discretion in denying the petition for certification to appeal;
the petitioner’s claims essentially challenged the determination of the
credibility of witnesses by the habeas court, which is the sole arbiter
of witness credibility and expressly found that the testimony of the
petitioner and A, alleging that the petitioner had been coerced into
pleading guilty, was not credible, that was the only evidence offered to
support the petitioner’s claims that his plea had been coerced and that
his trial counsel rendered ineffective assistance, and the credibility of
trial testimony is not debatable among jurists of reason.
Argued September 13—officially released November 5, 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 appel-
lant (petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Emily Trudeau, assistant state’s attorney, for
the appellee (respondent).
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) improp-
erly concluded that his plea was not coerced or involun-
tary. We disagree and dismiss the appeal.
The record discloses the following facts and proce-
dural 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, submit-
ted on May 31, 2017, alleged that his trial counsel, Attor-
neys 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., con-
ducted 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 testi-
mony indicated that, at some point prior to the petition-
er’s guilty plea, Hernandez and the petitioner’s cousin
were arrested for tampering with a witness in the peti-
tioner’s case. The petitioner and Hernandez both testi-
fied 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 deci-
sions 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. Con-
sequently, the court determined that the petitioner had
failed to establish either of the claims raised in his
petition. The court thereafter denied the amended peti-
tion 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 fur-
ther.’’ (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 sec-
ond-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 credi-
bility is not debatable among jurists of reason’’ and,
thus, cannot be used to overturn the decision of a
habeas court. Washington v. Commissioner of Correc-
tion, 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 peti-
tion for certification to appeal. Washington v. Commis-
sioner of Correction, supra, 166 Conn. App. 344–45;
Necaise v. Commissioner of Correction, supra, 112
Conn. App. 825–26.
The appeal is dismissed.