Sanchez v. Commissioner of Correction ( 2021 )

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EDWIN SANCHEZ v. COMMISSIONER
OF CORRECTION
(AC 43047)
Moll, Alexander and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder and conspir-
acy to commit murder, filed a second petition for a writ of habeas
corpus, claiming, inter alia, that his prior habeas counsel, V, had provided
ineffective assistance, his due process rights had been violated at his
criminal trial, and he was actually innocent. Specifically, the petitioner
claimed that the state had withheld evidence of a plea agreement
between the state and a cooperating witness, and that V rendered ineffec-
tive assistance because he, inter alia, failed to investigate and present
the testimony of another witness, P. The habeas court rendered judgment
denying the petitioner’s ineffective assistance of habeas counsel claim
and dismissing his due process and actual innocence claims, from which
the petitioner, on the granting of certification, appealed to this court.
Held:
1. The judgment of the habeas court dismissing the petitioner’s due process
claim was affirmed on the alternative ground that the claim was barred
by the doctrine of res judicata; the petitioner’s claim that the state failed
to reveal the existence of a plea agreement between the state and a
cooperating witness was fully litigated and adjudicated on the merits
during both the petitioner’s direct appeal and his first habeas trial, and
he failed to make a showing that any new factual allegations were
unavailable to him when he filed his direct appeal or first habeas petition.
2. The habeas court properly dismissed the petitioner’s actual innocence
claim because it was barred by the doctrine of res judicata; the legal
ground and relief sought in the petitioner’s actual innocence claim were
identical to those in his first habeas petition and the petitioner failed
to demonstrate that the claim was based on evidence not reasonably
available at the time of the first petition.
3. The habeas court properly denied the petitioner’s ineffective assistance
of habeas counsel claim because the petitioner failed to establish that
V’s performance was deficient; V did not testify at the petitioner’s second
habeas trial and, with no evidence to show what information was avail-
able to him, what decisions he made, and why he made them, the
petitioner could not overcome the presumption of V’s competence as
to his trial strategy.
Argued December 1, 2020—officially released April 13, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Newson, J.; judgment
denying in part and dismissing in part the petition, from
which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, J. The petitioner, Edwin Sanchez,
appeals from the judgment of the habeas court, Newson,
J., dismissing counts three and four of his second
amended petition for a writ of habeas corpus and deny-
ing count two of his petition. On appeal, the petitioner
claims that the court improperly (1) dismissed his due
process claim as procedurally defaulted, (2) dismissed
his actual innocence claim on the ground of res judicata,
and (3) denied his ineffective assistance of habeas coun-
sel claim. We disagree and affirm the judgment of the
habeas court.
The following recitation of facts as to the underlying
offense was set forth by this court in the petitioner’s
direct appeal from his conviction. ‘‘Darence Delgado
was murdered on May 2, 1995, on North Street in New
Britain. Prior to the murder, Jose Pabon was with the
[petitioner] on Willow Street, across the street from a
basketball court where Delgado and [Juan Vazquez]1
were talking. Pabon was a neighbor of the [petitioner].
That afternoon, the [petitioner] asked Pabon to retrieve
a gun that [Juan Vazquez] had left at Pabon’s house.
After returning with the gun, Pabon noticed that Del-
gado was no longer at the basketball court. Pabon
offered the gun to the [petitioner], but the [petitioner]
told him to hold on to it. The [petitioner] then told
Pabon to walk with him to the corner of North and
Willow Streets.
‘‘When they arrived at the corner, the [petitioner] told
Pabon, ‘When I start shooting, you shoot.’ Turning onto
North Street, they saw [Juan Vazquez] and Delgado,
who was sitting on a bicycle, approximately twenty-
five feet away. The [petitioner] approached them while
Pabon remained at the corner. The [petitioner] looked
at Pabon and nodded his head. He then pulled out a
black nine millimeter handgun, aimed it at Delgado’s
upper body and opened fire from close range. Delgado
fell to the ground and the [petitioner] continued to shoot
him. The [petitioner] turned around, looked at Pabon
and spread his arms. Pabon pulled out the gun he had
retrieved and fired four shots at Delgado. The [peti-
tioner] turned toward Delgado and again fired at him.
The [petitioner] and Pabon then ran from the scene and
hid their guns.
‘‘A week or so after the shooting, Pabon saw Miguel
Colon carrying the gun that the [petitioner] had used
to shoot Delgado. Pabon and Colon smashed it with
hammers and wrenches, destroying all but the barrel
of the gun. They wrapped the barrel in bags and buried it
in Pabon’s backyard. The police later seized that barrel.
Forensic testing revealed that it was a nine millimeter
barrel and that the intact nine millimeter bullet removed
from Delgado’s body during the autopsy was consistent
with having been fired from this barrel.
‘‘On September 23, 1997, the [petitioner] was charged
by information with murder and conspiracy to commit
murder. After a trial by jury, the [petitioner] was con-
victed of both charges and sentenced to a total effective
term of sixty years imprisonment. The [petitioner] filed
motions for acquittal and a new trial, which the court
denied.’’ (Footnote added and omitted.) State v. San-
chez, 84 Conn. App. 583, 585–86, 854 A.2d 778, cert.
denied, 271 Conn. 929, 859 A.2d 585 (2004).
This court affirmed the trial court’s judgment on
appeal. Id., 594. The petitioner made four arguments in
his direct appeal, one of which is relevant to the opera-
tive petition in the present matter. Id., 584–85. The peti-
tioner claimed that the state improperly withheld excul-
patory evidence regarding the credibility and culpability
of Pabon, who testified for the state at trial. Id., 586.
In particular, the petitioner claimed that the state had
failed to disclose the consideration that Pabon had been
promised in exchange for his testimony. Id., 586–87.
This court concluded that there was no evidence that
the state had improperly withheld exculpatory informa-
tion and affirmed the petitioner’s conviction. Id., 587.
The petitioner filed his first petition for a writ of
habeas corpus on November 2, 2004. That petition con-
tained a due process claim, alleging that the state had
failed to disclose the details of the deal it made with
Pabon. It also included an actual innocence claim, alleg-
ing that the murder actually was carried out by Pabon
and ‘‘one or more other persons . . . .’’ Following a
trial, the habeas court, Newson, J., denied the petition.
This court subsequently dismissed the appeal. Sanchez
v. Commissioner of Correction, 147 Conn. App. 903,
80 A.3d 934 (2013).
The petitioner filed his second petition for habeas
corpus, which is the subject of this appeal, in December,
2013. The October 29, 2018 second amended petition
contained four counts, of which counts two through
four are relevant to this appeal.2 In the second count,
the petitioner alleged that his prior habeas counsel had
been ineffective for failing to investigate and present
the testimony of Efrain Padua and to question Juan
Vazquez properly. The petitioner alleged that they
would have testified to the true identity of the shooter
and the petitioner’s whereabouts on the day of the
shooting. In the third count, the petitioner alleged actual
innocence on the basis that new testimony would estab-
lish that he was not the shooter. In the fourth count,
the petitioner alleged a violation of his right to due
process at his criminal trial, specifically alleging that
the state had failed to disclose all relevant details sur-
rounding the pretrial cooperation agreement with
Pabon.3
A trial was held before the habeas court, Newson,
J., on October 30, 2018. On April 4, 2019, the habeas
court issued a memorandum of decision dismissing or
denying each of the petitioner’s claims. As to the second
count, the court denied the claim that the petitioner’s
first habeas counsel rendered ineffective assistance,
referring to the general presumption of competence
afforded to counsel in trial strategy and noting credibil-
ity concerns with the petitioner’s witnesses. As to the
third count, the court dismissed the actual innocence
claim on the ground of res judicata, concluding that it
was nearly identical to the one advanced in the petition-
er’s first habeas trial and that it was based on facts
and evidence that could have been discovered through
reasonable diligence at the time of the first petition.
Lastly, as to the fourth count, the court dismissed the
due process claim on the ground of procedural default.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal from the judgment denying and dismiss-
ing his petition for a writ of habeas corpus. The habeas
court granted the petition for certification to appeal.
This appeal followed. Additional facts will be set forth
as necessary.
I
We begin with the two counts that the court dis-
missed: the petitioner’s due process and actual inno-
cence claims. We conclude that both of these claims
are subject to dismissal pursuant to res judicata.
Accordingly, we affirm the judgment of the habeas court
dismissing the petitioner’s due process and actual inno-
cence claims.
Before we turn to the petitioner’s claims, we briefly
set forth the appropriate standard of review for a dis-
missal of a habeas petition. ‘‘The conclusions reached
by the trial court in its decision to dismiss [a] habeas
petition are matters of law, subject to plenary review.
. . . [When] the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct . . . and whether they find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 566, 941 A.2d 248 (2008).
A
The petitioner first argues that the habeas court erred
in dismissing his due process claim as procedurally
defaulted. The respondent, the Commissioner of Cor-
rection, counters that we should affirm the habeas
court’s ruling on the alternative ground of res judicata.
We agree with the respondent.
The following additional facts and procedural history
are relevant to our resolution of this claim. Pabon testi-
fied on behalf of the state at the petitioner’s criminal
trial. State v. Sanchez, supra, 84 Conn. App. 586. Pabon
‘‘testified that he personally had not been promised
anything by the prosecution for his testimony, and that
he was hoping to be given consideration for his coopera-
tion.’’ Id., 586–87. He also testified that his attorney
had told him that he would receive consideration for
cooperating. Id., 587. A week after the petitioner had
been sentenced, the murder and conspiracy to commit
murder charges against Pabon were dismissed, and
Pabon pleaded guilty to the charge of assault in the
first degree. Id. The petitioner, whose appeal from his
conviction initially had been filed with our Supreme
Court, filed a motion for rectification and augmentation
of the trial court record in which he sought an eviden-
tiary hearing pursuant to State v. Floyd, 253 Conn. 700,
756 A.2d 799 (2000) (Floyd hearing),4 to determine
whether the state had ‘‘failed in its constitutional duty to
disclose exculpatory information.’’ (Internal quotation
marks omitted.) State v. Sanchez, supra, 586 n.4. The
trial court denied the motion, and our Supreme Court
upheld the denial on review. Id. In its memorandum of
decision on the motion, the trial court concluded that
‘‘[t]here is no evidence that the prosecution failed to
reveal a plea agreement, express or implied, between
Pabon and/or his attorney and the state. . . . [T]he
actions of the prosecutor appear to be no more than a
proper exercise of prosecutorial discretion in the dispo-
sition of Pabon’s case.’’ (Internal quotation marks omit-
ted.) Id., 587. In his direct appeal, which our Supreme
Court transferred to this court, the petitioner argued
that ‘‘the state improperly withheld exculpatory evi-
dence regarding the credibility and culpability of
Pabon.’’ Id., 586. This court affirmed the trial court’s
rejection of the defendant’s due process claim. Id., 587.
In his first petition for a writ of habeas corpus, the
petitioner alleged that ‘‘[p]rior to the trial the prosecut-
ing authority, or an agent of the prosecuting authority,
did not disclose exculpatory information to [the peti-
tioner] or his counsel, including that [Pabon] would be
receiving extraordinary considerations for his testi-
mony against [the petitioner],’’ thereby violating his due
process rights. The first habeas court denied the claim
in an oral ruling, explaining: ‘‘The state denied that
there was any specific agreement, and more notably
here, as of today, again, we’re some ten years down
the road, there’s been no evidence presented that any
of that was untrue . . . . Obviously, I don’t think—
I think it goes without saying that everybody in [a]
courtroom knows that an individual who is allegedly
involved in a crime then turns over and decides to testify
to the state, at least in their own mind, is expecting
something in return for that, and without a showing
that there was anything other than what was presented
at trial, which is that he expected to get something,
that there was nothing specific promised, there is no
violation. He was cross-examined on it. He indicated
there was no deal, and again, it’s [the] petitioner’s bur-
den to be able to prove that that violation existed, and
again, there hasn’t been anything here presented to
show that there was any such [violation], that there
was any such specific deal, even if it appears he got
significant consideration for his testimony and a very
small sentence, again, the claim isn’t here, and it wasn’t
unknown that he was going to get some consideration.
The claim here [is] that there was a specified deal
beforehand, and that was hidden. There’s been no evi-
dence here to support that claim.’’
The petitioner alleges in the present petition that he
‘‘was denied his right to a fair trial when the prosecutor
failed to disclose all of the relevant details surrounding
the pretrial cooperation agreement between the [state]
and [Pabon].’’ The court dismissed this count on the
ground of procedural default.5
1
Preliminarily, we address our ability to affirm a
habeas court’s dismissal on an alternative ground. ‘‘[I]t
is axiomatic that [w]e may affirm a proper result of the
trial court for a different reason.’’ (Internal quotation
marks omitted.) Coleman v. Commissioner of Correc-
tion, 111 Conn. App. 138, 140 n.1, 958 A.2d 790 (2008),
cert. denied, 290 Conn. 905, 962 A.2d 793 (2009). ‘‘Dis-
missal of a claim on alternative grounds is proper when
those grounds present pure questions of law, the record
is adequate for review, and the petitioner will suffer no
prejudice because he has the opportunity to respond
to proposed alternative grounds in the reply brief.’’
Johnson v. Commissioner of Correction, 168 Conn.
App. 294, 308 n.8, 145 A.3d 416, cert. denied, 323 Conn.
937, 151 A.3d 385 (2016). This court has repeatedly
affirmed habeas court rulings on alternative grounds.
See, e.g., Woods v. Commissioner of Correction, 197
Conn. App. 597, 627–28, 232 A.3d 63 (2020); Boria v.
Commissioner of Correction, 186 Conn. App. 332, 348,
199 A.3d 1127 (2018), cert. granted, 335 Conn. 901, 225
A.3d 685 (2020); Toccaline v. Commissioner of Correc-
tion, 177 Conn. App. 480, 494, 172 A.3d 821, cert. denied,
327 Conn. 986, 175 A.3d 45 (2017).
In the present case, the respondent raised res judicata
in his brief as an alternative ground to affirm the judg-
ment of the habeas court. The petitioner had the oppor-
tunity to respond to that ground in his reply brief. More-
over, the habeas court raised the issue of whether the
claim should be dismissed on the ground of res judicata
on the morning of the trial, October 30, 2018. On Novem-
ber 1, 2018, the habeas court ordered the parties to
submit briefs addressing whether this count ‘‘should
be dismissed on grounds of res judicata, because the
petitioner raised the same claim in his direct appeal.’’
Because the court did not rule on these issues until
after the trial, the petitioner was aware of the possibility
that res judicata might preclude his claims. As such,
the petitioner had every opportunity to present at trial
the evidence he felt necessary to prove his due process
claim and any evidence necessary to demonstrate that
the claim was based on evidence not reasonably avail-
able at the time of the earlier proceedings.6 Thus,
applying res judicata to the petitioner’s due process
claim would not result in prejudice to the petitioner.
Accordingly, we will consider the alternative ground
for affirmance advanced by the respondent.
2
In determining whether res judicata bars the petition-
er’s due process claim, we begin our analysis by
reviewing that doctrine as it applies to successive peti-
tions in habeas corpus proceedings. ‘‘The doctrine of
res judicata provides that a former judgment serves as
an absolute bar to a subsequent action involving any
claims relating to such cause of action which were
actually made or which might have been made. . . .
The doctrine . . . applies to criminal as well as civil
proceedings and to state habeas corpus proceedings.
. . . However, [u]nique policy considerations must be
taken into account in applying the doctrine of res judi-
cata to a constitutional claim raised by a habeas peti-
tioner. . . . Specifically, in the habeas context, in the
interest of ensuring that no one is deprived of liberty
in violation of his or her constitutional rights . . . the
application of the doctrine of res judicata . . . [is lim-
ited] to claims that actually have been raised and liti-
gated in an earlier proceeding.’’ (Internal quotation
marks omitted.) Carter v. Commissioner of Correction,
133 Conn. App. 387, 393, 35 A.3d 1088, cert. denied, 307
Conn. 901, 53 A.3d 217 (2012).
‘‘In the context of a habeas action, a court must deter-
mine whether a petitioner actually has raised a new
legal ground for relief or only has alleged different fac-
tual allegations in support of a previously litigated
claim.’’ Johnson v. Commissioner of Correction, supra,
168 Conn. App. 305. ‘‘Identical grounds may be proven
by different factual allegations, supported by different
legal arguments or articulated in different language.
. . . They raise, however, the same generic legal basis
for the same relief. Put differently, two grounds are
not identical if they seek different relief.’’ (Citations
omitted.) James L. v. Commissioner of Correction, 245
Conn. 132, 141, 712 A.2d 947 (1998).
‘‘[T]he doctrine of res judicata in the habeas context
must be read in conjunction with Practice Book § 23-
29 (3), which narrows its application. . . . Practice
Book § 23-29 states in relevant part: The judicial author-
ity may, at any time, upon its own motion or upon
motion of the respondent, dismiss the petition, or any
count thereof, if it determines that . . . (3) the petition
presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new
evidence not reasonably available at the time of the
prior petition. . . . Thus, a subsequent petition alleg-
ing the same ground as a previously denied petition
will elude dismissal if it alleges grounds not actually
litigated in the earlier petition and if it alleges new facts
or proffers new evidence not reasonably available at
the time of the earlier petition. . . . In this context, a
ground has been defined as sufficient legal basis for
granting the relief sought.’’ (Citations omitted; internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, supra, 168 Conn. App. 305–306. ‘‘Simply
put, an applicant must show that his application does,
indeed, involve a different legal ground, not merely
a verbal reformulation of the same ground.’’ (Internal
quotation marks omitted.) Carter v. Commissioner of
Correction, supra, 133 Conn. App. 394. Further, this
doctrine applies equally to claims litigated on direct
appeal, not just to claims raised in prior habeas peti-
tions. See Faraday v. Commissioner of Correction, 107
Conn. App. 769, 776–77, 946 A.2d 891 (2008); Fernandez
v. Commissioner of Correction, 86 Conn. App. 42, 45–
46, 859 A.2d 948 (2004).
Here, the petitioner has sought habeas review of a
claim that was unequivocally raised, litigated, and
decided on direct appeal and in his first habeas petition.
With respect to the claim on direct appeal, the petitioner
claimed that ‘‘the state improperly withheld exculpatory
evidence regarding the credibility and culpability of
Pabon.’’ State v. Sanchez, supra, 84 Conn. App. 586.
The operative petition claims that the petitioner ‘‘was
denied his right to a fair trial when the prosecutor failed
to disclose all of the relevant details surrounding the
pretrial cooperation agreement between the [state] and
[Pabon].’’ The present claim is identical in substance
and law to the claim advanced on direct appeal. Both
claims are ultimately premised on the same alleged
violation of the due process rights established in Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963). On direct appeal, this court agreed with the
criminal trial court that there was no evidence that the
state improperly withheld exculpatory evidence. State
v. Sanchez, supra, 586.
Nevertheless, the petitioner argues that he did not
have an opportunity to fully litigate this claim on direct
appeal because the trial court denied the petitioner a
Floyd hearing to introduce further evidence. However,
a defendant is not guaranteed a Floyd hearing. ‘‘[The
court] will order a Floyd hearing to develop a potential
Brady violation only in the unusual situation in which
a defendant was precluded from perfecting the record
due to new information obtained after judgment. . . .
A Floyd hearing is not a license to engage in a posttrial
fishing expedition, as the court will not hold a hearing
in the absence of sufficient prima face evidence, direct
or circumstantial, of a Brady violation unascertainable
at trial.’’ (Citation omitted; internal quotation marks
omitted.) State v. Ortiz, 280 Conn. 686, 712 n.17, 911
A.2d 1055 (2006). The petitioner thus had the opportu-
nity to present prima face evidence of the alleged deal
between the state and Pabon in his motion for a Floyd
hearing. After the trial court denied the petitioner’s
motion for a Floyd hearing, the petitioner filed a motion
for review of that denial with our Supreme Court. State
v. Sanchez, supra, 586 n.4. Our Supreme Court granted
review, but denied the relief requested, finding that the
trial court did not abuse its discretion in denying the
motion and that the requested evidentiary hearing was
unnecessary. Id. Then, on direct appeal, despite the
denial of the motion, the petitioner ‘‘argue[d] that the
record [was] nevertheless sufficient for our review of
his claim.’’ Id., 587. This court agreed with the trial
court that there was no evidence that the state failed
to reveal a plea agreement between Pabon and the
state. Id. The petitioner thus had an opportunity to fully
litigate this claim on direct appeal.
As for the first habeas petition, the petitioner claimed
in that proceeding that the state ‘‘did not disclose excul-
patory information to [the petitioner] or his counsel,
including that [Pabon] would be receiving extraordinary
considerations for his testimony against [the peti-
tioner].’’ This claim also is identical to the present claim
in substance and, again, is premised on a violation of
Brady. The petitioner, in both his principal appellate
brief and reply brief, even concedes that a similar due
process claim was raised in his first habeas petition,
stating that ‘‘[i]t is indisputable that the petitioner did,
in fact, raise a nearly identical Brady claim concerning
Pabon in his first habeas petition.’’ Nevertheless, the
petitioner insists that res judicata should not apply to
the present claim because it is based on new evidence:
‘‘[I]n the underlying proceeding the petitioner presented
the testimony of Juan Vazquez, who testified that the
state approached him with the possibility of leniency
in exchange for testifying against the petitioner. . . .
That the state was offering consideration to other wit-
nesses in exchange for their testimony is certainly rele-
vant evidence for a court to draw the inference that
Pabon and the state also had an understanding prior
to his testimony.’’ New evidence alone is insufficient
to escape res judicata. The petitioner must ‘‘proffer new
evidence not reasonably available at the time of the
prior petition . . . .’’ (Emphasis added.) Practice Book
§ 23-29 (3); see Johnson v. Commissioner of Correc-
tion, supra, 168 Conn. App. 306. Juan Vazquez testified
at the trial on the first habeas petition. Therefore, this
evidence was clearly available at the time of the prior
petition. Our review of the trial transcript for the pres-
ent petition reveals no other potential new evidence
relating to any deals that Pabon may have received in
exchange for his testimony.
Because the petitioner has asserted a claim that pre-
viously was adjudicated fully on the merits and has
made no showing that any new factual allegations were
unavailable to him when he filed his direct appeal or
his earlier petition, we agree with the respondent that
the petitioner’s due process claim is barred by the doc-
trine of res judicata. We conclude, therefore, that the
habeas court properly dismissed this claim, albeit on
different grounds.
B
The petitioner next claims that the habeas court erred
by dismissing his actual innocence claim on the ground
of res judicata. The petitioner argues that his ‘‘claim of
actual innocence was predicated on newly discovered
evidence, not reasonably available through the exercise
of due diligence by prior counsel. Specifically, the peti-
tioner’s claim of actual innocence was predicated on
the recantation testimony of Angel Vasquez and the
testimony of Efrain Padua.’’ In turn, the respondent
argues that the petitioner’s claim is based on evidence
that was reasonably available at the time of the first
habeas petition. We agree with the respondent.
The following additional facts and procedural history
are relevant to our resolution of this claim. The petition-
er’s first habeas petition contained an actual innocence
claim, specifically alleging that the shooting was carried
out by Pabon and ‘‘one or more other persons’’ and that
the petitioner had nothing to do with the shooting. The
petitioner stated that he would present ‘‘new evidence,
establishing his innocence to the standard required by
law, including certain witnesses who were available
from the Roosevelt School nearby who were privy to
information that another individual was involved in the
shooting as well as information that the true motive for
the shooting was a retaliation hit by [a rival] gang
. . . .’’ (Emphasis omitted.)
To support this claim, the petitioner offered the testi-
mony of himself and Juan Vazquez. The habeas court
denied the claim, explaining that the claim was not
based on newly discovered evidence and, even if it was,
the court did not find the testimony of the petitioner
or Juan Vazquez to be credible.
The petitioner again alleged an actual innocence
count in the present petition, which alleged that Angel
Vasquez, Efrain Padua, and Juan Vazquez would testify
that the petitioner was not the shooter. Specifically, the
petition stated that Angel Vasquez would recant his
testimony from the criminal trial, that Efrain Padua
would testify that he and the petitioner were hiding in
a store vestibule at the time of the shooting, and that
Juan Vazquez would testify that the petitioner was not
the shooter. The court dismissed the count on the
ground of res judicata, finding that ‘‘the present allega-
tions fail to offer new facts or evidence that could not
have been discovered through reasonable diligence at
the time of the prior habeas trial’’ and that ‘‘the peti-
tioner . . . seeks the same relief now as he did in [the
prior petition] . . . .’’
We rely on the legal principles regarding res judicata
set forth previously in this opinion. We iterate that, in
order to elude dismissal, a subsequent petition alleging
the same ground as a previously denied petition must
allege new facts or evidence not reasonably available
at the time of the earlier petition. Johnson v. Commis-
sioner of Correction, supra, 168 Conn. App. 306. Addi-
tionally, ‘‘[t]he conclusions reached by the trial court
in its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . .’’ (Citation
omitted; internal quotation marks omitted.) Carter v.
Commissioner of Correction, supra, 133 Conn. App.
392.
We agree with the court that the actual innocence
claims in the present and first habeas petitions seek
the same relief and are premised on the same legal
grounds and similar factual bases. Both petitions seek
to vacate the petitioner’s conviction. The first petition
claimed that Pabon falsely testified at the criminal trial
and that ‘‘Pabon and one or more other persons’’ killed
the victim. The present petition claims that Angel Vas-
quez falsely testified at the criminal trial and that ‘‘Ian
Tardiff and [Pabon] were the actual shooters . . . .’’
The determinative question is whether the proffered
testimony was reasonably available at the time of the
first petition. See McClendon v. Commissioner of Cor-
rection, 93 Conn. App. 228, 231, 888 A.2d 183 (‘‘where
successive petitions are premised on the same legal
grounds and seek the same relief, the second petition
will not survive a motion to dismiss unless the petition
is supported by allegations and facts not reasonably
available to the petitioner at the time of the original
petition’’ (emphasis added)), cert. denied, 277 Conn.
917, 895 A.2d 789 (2006).
To the extent that the petitioner’s claim is based on
the testimony of Juan Vazquez, he testified at the first
habeas trial. The petitioner concedes that at the first
habeas trial Juan Vazquez ‘‘testified in a manner similar
[to his testimony at] the underlying proceedings.’’ This
evidence was available to the petitioner at the time of
the first petition.
As for Angel Vasquez, the court concluded that ‘‘any
information offered through Angel [Vasquez] would eas-
ily have been discovered through due diligence, since
he was a witness who testified against the petitioner
at his criminal trial . . . .’’ The petitioner argues that
Angel Vasquez’ testimony was not reasonably available
prior to this petition because it consists of a recantation
of his testimony at the criminal trial: ‘‘[T]he court over-
looks the fact that [Angel Vasquez’] testimony consti-
tuted recantation testimony, so such by its very nature
would not have been available at trial. . . . [Angel Vas-
quez] testified that his testimony at the petitioner’s crim-
inal trial was all lies. . . . Thus, such recantation testi-
mony was not reasonably available at the time of the
petitioner’s criminal trial. Additionally, [Angel Vasquez]
testified that he was never contacted until the underly-
ing proceedings about the petitioner’s case and that he
did not ‘know what was going on’ with this matter.’’
However, the determinative issue is not whether Angel
Vasquez’ recantation was available at the petitioner’s
criminal trial, but whether it was reasonably available
at the time of the first habeas petition.7
It is incumbent on the petitioner to establish that
evidence would not have been reasonably available at
the time of a prior petition. See Gudino v. Commis-
sioner of Correction, 191 Conn. App. 263, 274, 214 A.3d
383 (explaining that when petitioner ‘‘[brings] a claim
on the same legal ground and seeking the same relief, he
can avoid dismissal only by alleging and demonstrating
that evidence necessary to support the newly asserted
facts was not reasonably available at the time of the
prior petition’’ (emphasis added)), cert. denied, 333
Conn. 924, 218 A.3d 67 (2019). The petitioner has failed
to allege any facts that suggest that Angel Vasquez
would not have been similarly willing to recant his
testimony at the time of the first habeas trial. The peti-
tioner points out that Angel Vasquez testified that it
was not until he was approached by counsel for the
present petition that he decided to recant his testimony,
but it does not necessarily follow that he would not
have done so for the first habeas trial. The petitioner
stresses that Angel Vasquez wanted to recant his testi-
mony because it was ‘‘[weighing] on [him] heavy . . .
all these years,’’ but that testimony alone is insufficient
to establish that the recantation was not reasonably
available in 2011, at the time of the first habeas trial,
particularly since the witness’ original trial testimony
was in 2000. Lastly, as the court and the respondent
point out, the petitioner himself referenced Angel Vas-
quez’ allegedly false trial testimony during the first
habeas trial. We agree with the court that the petitioner
has failed to establish that any information offered
through Angel Vasquez would not have been reasonably
available at the time of the first habeas trial.
As for Padua, the petitioner similarly offers no evi-
dence that Padua was not reasonably available to testify
at the first habeas trial. The petitioner again stresses
that this witness was not available for the criminal trial:
‘‘Following the shooting, Padua returned to Puerto Rico
to deal with his own mother’s death. . . . Padua did
not return to Connecticut until 2003, well after the peti-
tioner’s criminal trial.’’ This evidence does not suggest
that Padua would have been unavailable to testify at
the first habeas trial in 2011.8 In fact, Padua testified
at trial for the present petition that he would have
offered the same testimony if he had been called to
testify previously. As with Angel Vasquez, the petitioner
has failed to demonstrate that Padua was not available
to testify at the trial of the first petition.9
Accordingly, we agree with the habeas court that
res judicata bars relitigation of the petitioner’s actual
innocence claim. The legal ground and relief sought in
the petitioner’s actual innocence claim are identical to
those in his first petition, and the petitioner has failed
to demonstrate that the claim is based on evidence not
reasonably available at the time of the first petition.
II
Lastly, we address the petitioner’s ineffective assis-
tance of habeas counsel claim. The petitioner argues
that the court erred in concluding that his prior habeas
counsel, Attorney Joseph Visone, did not render ineffec-
tive assistance by failing to investigate and present the
testimony of Padua and failing to properly question
Juan Vazquez about the identity of the shooters.10
We first set forth the general principles surrounding
ineffective assistance of counsel claims and our stan-
dard of review. ‘‘In Strickland v. Washington, [466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the
United States Supreme Court established that for a peti-
tioner to prevail on a claim of ineffective assistance of
counsel, he must show that counsel’s assistance was
so defective as to require reversal of [the] conviction
. . . . That requires the petitioner to show (1) that
counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense. . . .
Unless a [petitioner] makes both showings, it cannot
be said that the conviction . . . resulted from a break-
down in the adversary process that renders the result
unreliable. . . . Because both prongs . . . must be
established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong.’’ (Internal quotation marks omitted.) Vazquez v.
Commissioner of Correction, 128 Conn. App. 425, 430,
17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d
1277 (2011).
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Internal quotation marks omitted.) Mukh-
taar v. Commissioner of Correction, 158 Conn. App.
431, 437–38, 119 A.3d 607 (2015).
‘‘To satisfy the second prong of Strickland, that his
counsel’s deficient performance prejudiced his defense,
the petitioner must establish that, as a result of his
trial counsel’s deficient performance, there remains a
probability sufficient to undermine confidence in the
verdict that resulted in his appeal. . . . The second
prong is thus satisfied if the petitioner can demonstrate
that there is a reasonable probability that, but for that
ineffectiveness, the outcome would have been differ-
ent.’’ (Internal quotation marks omitted.) Horn v. Com-
missioner of Correction, 321 Conn. 767, 776, 138 A.3d
908 (2016).
‘‘[When] applied to a claim of ineffective assistance
of prior habeas counsel, the Strickland standard
requires the petitioner to demonstrate that his prior
habeas counsel’s performance was ineffective and that
this ineffectiveness prejudiced the petitioner’s prior
habeas proceeding. . . . [T]he petitioner will have to
prove that one or both of the prior habeas counsel, in
presenting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and a
new trial . . . .’’ (Emphasis omitted; footnote omitted.)
Harris v. Commissioner of Correction, 108 Conn. App.
201, 209–10, 947 A.2d 435, cert. denied, 288 Conn. 911,
953 A.2d 652 (2008). ‘‘Therefore, as explained by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [trial] counsel must essentially satisfy
Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [trial] counsel was ineffective.’’ (Internal quotation
marks omitted.) Ham v. Commissioner of Correction,
152 Conn. App. 212, 230, 98 A.3d 81, cert. denied, 314
Conn. 932, 102 A.3d 83 (2014). ‘‘We have characterized
this burden as presenting a herculean task . . . .’’
(Internal quotation marks omitted.) Alterisi v. Commis-
sioner of Correction, 145 Conn. App. 218, 227, 77 A.3d
748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
‘‘In a habeas appeal, although this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) Griffin v. Commissioner of Cor-
rection, 119 Conn. App. 239, 241, 987 A.2d 1037, cert.
denied, 295 Conn. 912, 989 A.2d 1074 (2010). With the
foregoing principles in mind, we now address the merits
of the petitioner’s claim.
As for the claim that Visone failed to question Juan
Vazquez properly regarding the identity of the shooters,
the court disposed of that claim on the prejudice prong.
The court found no substantive difference between
Juan Vazquez’ testimony in the two habeas trials and
did not find him to be a credible witness.11 The petitioner
has not challenged this finding.
As for the failure to investigate and present the testi-
mony of Padua, the court ultimately denied the claim,
but did not include an explicit discussion of the grounds
supporting its ruling. The court’s failure to explicitly
discuss each of Visone’s alleged deficiencies does not
prevent us from reaching the merits of the issue. See
Ricardo R. v. Commissioner of Correction, 185 Conn.
App. 787, 789 n.1, 198 A.3d 630 (2018) (concluding that
where habeas court did not explicitly address petition-
er’s claim, but implicitly rejected claim in its final deter-
mination, reviewing court can reach merits of allegation
if record is sufficient for review), cert. denied, 330 Conn.
959, 199 A.3d 560 (2019). We affirm the court’s ruling
on the ground that the petitioner failed to establish that
Attorney Visone’s performance was deficient.
Attorney Visone did not testify at the second habeas
trial. Although not fatal to a claim of ineffective assis-
tance of counsel, the habeas court appropriately noted
the difficulty in overcoming the presumption of compe-
tence when a petitioner fails to call the attorney in
question: ‘‘While calling the attorney in question is not a
legal requirement in pursuing a claim of ineffectiveness,
the trial court recognizes the general presumption of
competence and deference afforded to trial counsel in
the strategic decisions on which witnesses to call and
the questions to ask those witnesses. ‘[T]here is a strong
presumption that the trial strategy employed by . . .
counsel is reasonable and is a result of the exercise of
professional judgment. . . . It is well established that
[a] reviewing court must view counsel’s conduct with
a strong presumption that it falls within the wide range
of reasonable professional assistance and that a tactic
that appears ineffective in hindsight may have been
sound trial strategy at the time.’ . . . Boyd v. Commis-
sioner of Correction, 130 Conn. App. 291, 297–98, 21
A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337(2011).’’
‘‘The law presumes that counsel is competent until
evidence has been introduced to the contrary. . . . It
is elementary jurisprudence that the determination of
whether counsel’s conduct was ineffective is a pecu-
liarly fact bound inquiry. . . . Moreover, [i]t is well
established that a petitioner in a habeas proceeding
cannot rely on mere conjecture or speculation to satisfy
either the performance or prejudice prong [of Strick-
land] but must instead offer demonstrable evidence
in support of his claim.’’ (Citations omitted; internal
quotation marks omitted.) Martinez v. Commissioner
of Correction, 147 Conn. App. 307, 315–16, 82 A.3d 666(2013), cert. denied, 311 Conn. 917, 85 A.3d 652 (2014).
The petitioner has failed to sustain his burden to offer
evidence in support of his claim. While Padua did testify
that he would have offered the same testimony if con-
tacted for the first habeas trial, there is no other evi-
dence to support a finding of deficiency. The petitioner
testified that he spoke with his trial counsel about
Padua, but there is no testimony that the petitioner told
Visone to contact Padua or discussed the importance
of Padua’s testimony with Visone. Accordingly, the peti-
tioner is unable to overcome the presumption of
Visone’s competence as to his trial strategy. ‘‘Although
[counsel’s] testimony is not necessary to [a] determina-
tion that a particular decision might be considered
sound trial strategy . . . [a] habeas petitioner’s failure
to present [counsel’s] testimony as to the strategy
employed . . . hampers both the court at the habeas
trial and the reviewing court in their assessments of
[strategy].’’ (Citation omitted; internal quotation marks
omitted.) Jordan v. Commissioner of Correction, 197
Conn. App. 822, 862, 234 A.3d 78, cert. granted, 335
Conn. 931, 236 A.3d 218 (2020). The petitioner cannot
establish that Visone rendered deficient performance
when he has failed to show what information was avail-
able to Visone, what decisions he made, and why he
made them. We thus agree with the court’s ultimate
decision to deny the petitioner’s ineffective assistance
of habeas counsel claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The criminal trial court referred to this individual as Jay Vasquez. He
did not testify at the petitioner’s criminal trial. He introduced himself as
Juan Vazquez at the petitioner’s first and second habeas trials and explained
that he also went by Jay, which was his middle name. Angel Vasquez also
testified at the petitioner’s criminal trial and second habeas trial, but not
at his first habeas trial. The spelling of Juan’s and Angel’s last names is
inconsistent throughout the record. To avoid confusion, we will refer to Jay
as ‘‘Juan Vazquez’’ and to Angel as ‘‘Angel Vasquez.’’
2
The second amended habeas petition included claims of ineffective assis-
tance of trial counsel, ineffective assistance of habeas counsel, actual inno-
cence, and a due process violation. The habeas court dismissed or denied
all four counts and the petitioner on appeal has not challenged the dismissal
of count one, the ineffective assistance of trial counsel claim.
3
The fourth count also included a claim that the jury had been instructed
improperly regarding double jeopardy. This claim has not been advanced
on appeal.
4
‘‘Pursuant to State v. Floyd, supra, 253 Conn. 700, a trial court may
conduct a posttrial evidentiary hearing to explore claims of potential Brady
[v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] violations
when a defendant was precluded from perfecting the record due to new
information obtained after judgment.’’ (Internal quotation marks omitted.)
State v. Ouellette, 295 Conn. 173, 182 n.7, 989 A.2d 1048 (2010). Brady held
‘‘that the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.’’ Brady v. Maryland, supra, 373 U.S. 87. ‘‘In order to warrant
[a Floyd hearing], a defendant must produce prima facie evidence, direct
or circumstantial, of a Brady violation unascertainable at trial. . . . The
trial court’s decision with respect to whether to hold a Floyd hearing is
reviewable by motion for review pursuant to Practice Book § 66-7 . . . .’’
(Citation omitted; internal quotation marks omitted.) State v. Ouellette,
supra, 182 n.7.
5
The court concluded that res judicata did not apply to the petitioner’s
due process claim because the substance of his claim was different from
that on direct appeal. We agree with the respondent that in reaching that
conclusion, the court was mistaken in its reading of this court’s opinion in
the direct appeal. The habeas court stated that ‘‘the actual substance of the
petitioner’s attack on the state’s deal with his coconspirator was whether
allowing the coconspirator, also a cooperating witness, to plead to a noncon-
spiracy offense undermined the legal ability to prosecute him for ‘conspir-
acy.’ ’’ The court appears to have examined part IV of this court’s opinion
instead of part I, wherein we discussed the petitioner’s claim that the state
withheld exculpatory evidence regarding Pabon. State v. Sanchez, supra,
84 Conn. App. 586–93.
6
The petitioner argues that he might have created a different record if
the issue of res judicata had been raised earlier, and that the record is
inadequate for review as a result. We are not persuaded. Our role in determin-
ing whether a claim should have been dismissed on the ground of res judicata
is to examine whether the present claim alleges grounds not actually litigated
in the earlier proceeding and whether it alleges new facts or proffers new
evidence not reasonably available at the time of the earlier proceeding. See
Johnson v. Commissioner of Correction, supra, 168 Conn. App. 306. The
record therefore is adequate to determine whether the present claim rests
on the same legal grounds and evidence as the due process claim in the
first petition and on direct appeal.
7
The petitioner appears to conflate the standard for res judicata with the
standard for actual innocence when the claim is addressed on the merits.
As we have stated, for a successive habeas petition to survive a motion to
dismiss, it must be premised on allegations and facts not reasonably available
to the petitioner at the time of the original petition. See McClendon v.
Commissioner of Correction, supra, 93 Conn. App. 231. However, if a claim
of actual innocence is addressed on the merits, this court has held that the
claim must be based on newly discovered evidence that could not have
been discovered prior to the petitioner’s criminal trial by the exercise of
due diligence. Vazquez v. Commissioner of Correction, 128 Conn. App. 425,
444, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). Because
the habeas court did not reach the merits of the actual innocence claim,
and neither do we, it is immaterial whether the testimony of Angel Vasquez
and Padua offered at the present petition was available at the time of the
criminal trial.
8
Additionally, we note that the petitioner has alleged that his prior habeas
counsel was ineffective for failing to investigate and present the testimony
of Padua in the prior habeas trial; see part II of this opinion; which implicitly
suggests that Padua was in fact available in 2011.
9
The court also stated that ‘‘to the extent this ‘actual innocence’ claim
relies on testimony from [Padua] that the petitioner was hiding in a store
vestibule at the time of the shooting, this also is not ‘newly discovered
evidence,’ it is merely the petitioner offering information he testified to in
[the first petition] through a different witness.’’ The petitioner argues that
this finding is clearly erroneous, but as the respondent points out, we need
not address this finding if we agree with and find support for the court’s
ultimate legal conclusion that the petitioner has failed to demonstrate that
his actual innocence claim is based on evidence not reasonably available
at the time of the first petition.
In his reply brief, the petitioner characterizes this outcome as affirming
the ruling on ‘‘alternative grounds,’’ but we are merely applying the well
established standard of review for a dismissal on the ground of res judicata
in the context of a habeas petition. See part I A of this opinion. Our agreement
with the court that res judicata bars relitigation of the claim, but for a
different reason, does not constitute an affirmance on alternative grounds.
See Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980) (characteriz-
ing ‘‘ ‘ground’ ’’ as legal basis for ruling).
10
The second amended petition also included claims that Visone was
ineffective for failing to call the victim’s mother and for failing to present
evidence that the shooting was a gang-related retaliation. The court sum-
marily disposed of these claims. The petitioner has not challenged these
conclusions.
11
Judge Newson presided over both the first and second habeas trials.