Opinion
CV124004957S
06-23-2016
Christopher Gaskin (Inmate #228618) v. Warden
June 23, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Stanley T. Fuger, Jr., Senior Judge.
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus, filed on September 10, 2012, and which was amended for the final time by assigned counsel on December 9, 2014. The second amended petition claims that the petitioner's rights to a fair trial and due process were violated by the prosecuting authority's failures to correct false testimony and to disclose exculpatory materials. The respondent's amended return denies these claims and asserts procedural default as an affirmative defense. In his reply to the amended return, the petitioner denies that he has procedurally defaulted and alleges cause and prejudice. As relief the petitioner requests that the habeas court reverse the judgment of the petitioner's criminal jury trial and order a new trial.
The matter proceeded to a trial on the merits over the course of three days, June 30 and December 2, 2015, and January 5, 2016. Three witnesses presented testimony: Benjamin Ellis, Attorney John Stawicki and former Assistant State's Attorney Victor Carlucci. Additional evidence consisted of transcripts and copies of statements and court documents. Both parties filed post-trial briefs.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
CRIMINAL CONVICTION AND POST-CONVICTION PROCEEDINGS
In docket number CR01-0553456, judicial district of Hartford, the petitioner was found guilty by a jury of murder in violation of General Statutes § 53a-54a(a), conspiracy to commit murder in violation of General Statutes § § 53a-48 and 53a-54a(a), and tampering with a witness in violation of General Statutes § 53a-151. The petitioner was sentenced to a total effective sentence of sixty-five years of incarceration. Attorney Austin McGuigan represented the petitioner at all stages of the criminal proceedings at issue in this habeas corpus petition. On December 30, 2003, the petitioner appealed from the judgment of conviction and was represented initially on appeal by Attorney Pamela Nagy. The appeal was withdrawn on April 10, 2013.
According to Judicial's website case lookup, the appeal was assigned docket number SC17128. Although Attorney Nagy initially represented the petitioner on appeal, a motion to withdraw as appointed counsel was filed on December 29, 2004, and granted on September 11, 2006. The petitioner represented himself from then until the appeal was withdrawn on April 10, 2013.
The petitioner sought sentence review. In its decision articulating the reasons why the sentence was neither inappropriate nor disproportionate, the Sentence Review Division panel, (Iannotti, J., White, J., and Alexander, J.), summarized the underlying facts. " On 7/6/98, members of the Hartford police department were dispatched and responded to 104 Adams Street on a report of a person shot. Initial responding officers located a black male suffering from a single gunshot wound to the abdomen. The victim was transported to St. Francis Hospital for treatment of his injuries. Upon arrival the victim was admitted to the emergency room and at 10:47 p.m. Dr. Steven Luke pronounced him dead. Additionally, officers located another male victim who was found in front of 1382 Albany Avenue in Hartford. This victim was suffering from a single gunshot wound to his left buttock. This victim was found to have a non-life threatening wound.
The Sentence Review Division decision indicates that the " account was derived from information contained in the police report." This court notes the foregoing because the respondent's post-trial brief also restates this summary with the proper caveat. The summary is not what the jury reasonably could have found based on the evidence presented; nevertheless, it is a helpful summary and was utilized by the three-judge panel at sentence review. This court has reviewed all the transcripts of the criminal trial.
" The following day, Tuesday, July 7, 1998, an autopsy performed on the 26-year old male victim at the Chief Medical Examiner's Office located in Farmington, Connecticut ruled the cause of death to be a gunshot wound of the abdomen and he certified the manner of death a homicide. Further investigation by police revealed that at the time of the shooting a group of males were in the area in front of the Mr. Sparkle Car Wash. located at 1382 Albany Avenue in Hartford. This group included the second victim, Reginald Jackson, and witness Chan Williams-Bey, all of whom stated that they heard gunshots coming from the rear of the car wash. That witness, Chan Williams-Bey, stated in a sworn written statement that approximately two weeks prior to this incident he and a group of his friends had a physical altercation in Springfield, Massachusetts at a nightclub called Razzels and that the altercation was actually a fight between London Johnson and a guy he knows as 'Shaq.' Witness Williams-Bey stated to his knowledge the fight was over the fact that 'Shaq' had robbed London Johnson.
" On August 24, 2001, police interviewed London Johnson who confirmed the fact that a short time prior to the murder of the 26-year-old male victim he had been involved in an altercation while at a nightclub in Springfield, Massachusetts. Johnson stated that the person he fought with was Christopher Gaskin. He stated that Gaskin was known on the street by the nickname of 'Shaq.' Johnson added that he had heard that he was supposed to be the intended victim of the assault that took the life of the 26-year-old male victim and caused the injuries to the second victim. Johnson said that at the time of this incident he was not at the car wash on Albany Avenue.
" On February 22, 2001, a detective spoke with a witness who informed investigators he observed two black males dressed in camouflage clothing and carrying guns run to the rear of the car wash on Albany Avenue moments before the shooting. The witness also stated that shortly after he observed the two men he heard gunshots.
" On September 6, 2001, police interviewed and obtained a sworn written statement from Ms. Evelyn Douglas and that both the 1999 statement and the present statement are consistent in Ms. Douglas' account of her actions and observations surrounding this incident. Evelyn Douglas stated that at the time of this incident she was living with Christopher Gaskin in Hartford. She stated that she had known Gaskin since 1997 and that Gaskin had fathered her son. Douglas stated that Gaskin used the name of 'Shaq.' Ms. Douglas further added that when she first met Gaskin she was aware of things he did on the street but he was nice to her. She said things were okay between the two until they moved to Garden Street. She said she used to hear people tell her that she shouldn't mess with 'Shaq' because he had robbed people. Douglas said she inquired about the rumors but Gaskin would not comment about them. Douglas said that on numerous occasions she saw Gaskin with guns and he would let her hold them. Douglas said he had guns with red lights coming out of them and another gun with a scope on it and when you look through the scope you can see a little red light. She further stated that Shaq had all kinds of guns. Ms. Douglas further informed police that a few days before the shooting that took the life of the male victim she observed Christopher Gaskin with an injury to his lip. She stated that when she questioned him about his injury he stated that he had been in a bar in Springfield, Massachusetts and had gotten into a fight. Douglas also added that Gaskin told her during the fight a guy name 'Lush' hit him in the face with a chain causing his injury. She stated that Gaskin told her he would get 'Lush' back for the fight. Douglas stated to her knowledge the person who used the nickname 'Lush' was in fact London Johnson.
" Douglas continued to inform police that four days after she observed the injury to Gaskin's lip, she was in her apartment with Gaskin when two other individuals came to pick him up. She states that Gaskin returned some time later in the evening and noticed he was still wearing the same clothes and was sweating like he had been running a few blocks. She states that his back and underarms were sweaty and he began to cry. She states that Gaskin was shaking his head and pacing back and forth and told Douglas that 'I shot him; I didn't mean to shoot him; I think he's dead.' Douglas said that he then told her 'I meant to shoot Lush.'
" During the course of the investigation, detectives obtained bullet fragments from both victims. These fragments were submitted to the state of Connecticut Forensic Laboratory for testing on July 15, 1998. The test result states that both bullet fragments were approximately .38 caliber. Christopher Gaskin was subsequently arrested and taken into custody." State v. Gaskin, Superior Court, judicial district of Hartford, Docket No. CR01-553456 (May 26, 2009) (2009 WL 1753777).
Benjamin Ellis, one of the petitioner's co-defendants, testified at the petitioner's criminal trial on June 23 and 24, 2003. Ellis agreed to testify against the petitioner and at the trial of another co-defendant, Trevor Bennet. The state disclosed to the petitioner that Ellis was cooperating with the state and that the state would make such cooperation known to the judge who would eventually sentence Ellis. Both the prosecutor and Attorney McGuigan extensively questioned Ellis about his cooperation and what he expected in return for such cooperation.
According to the petitioner's post-trial brief, Bennet was acquitted.
On June 9, 2003, the day before the first day of the criminal jury trial, the court took up a number of pretrial issues and motions, including a defense motion regarding the disclosure of cooperating witnesses. Dennis Paris, a victim of the shooting, was questioned by counsel and the court about any promises made in exchange for his cooperation. Paris denied that there were any deals or that anyone had even suggested to him his cooperation would help him. Petitioner's Exhibit 11, p. 31. Later in the proceeding Ellis briefly appeared in court, but did not testify because he did not yet have an opportunity to talk with an attorney. Id., pp. 71-74. Most importantly, before Ellis was brought into the courtroom, the court and the prosecutor discussed what, if anything, had been offered to Ellis by the prosecutor. The prosecutor indicated no offers had been made and that there was no agreement. The prosecutor then indicated that in this case [i.e., with Ellis] the cooperating witness was told that in exchange for truthful and full cooperation, the prosecutor would later inform the sentencing judge of the statement and cooperation at trial. Id., pp. 49-50. Attorney McGuigan, petitioner's criminal defense counsel, was present when the prosecutor made that disclosure.
At the very beginning of direct examination, the prosecutor asked Ellis if there " were any promises made by the Hartford Police Department, my office which is the State's Attorneys Office, or anybody else in regard to these matters--your statements that you made and your testimony today?" Petitioner's Exhibit 7, p. 141. Ellis responded " No." Shortly thereafter, the prosecutor asked Ellis why he gave the statement and why he was testifying, to which Ellis responded that he felt bad about the incident and was trying to do the right thing. Id., pp. 142-43. The state's direct examination of Ellis concluded on June 24, 2003.
Attorney McGuigan asked a series of questions setting the stage for a question that explicitly asked Ellis if " it was [his] understanding that if [he] testified truthfully the State would take that into consideration in deciding what would happen in the case in which [he was] charged?" Petitioner's Exhibit 8, p. 26. Ellis responded that he was not made any promises and, when again queried by Attorney McGuigan if it was his " understanding that if [he] testified truthfully the State would take that into consideration in deciding the outcome of [his] case?[, ]" Ellis responded that he was not sure and answered " No." when asked if that was discussed. Id., p. 27 .
Thereafter the following exchange occurred during cross examination of Ellis by Attorney McGuigan:
Q I'm going to try to briefly summarize this. Is this a fair statement, it's your understanding that after you provide truthful testimony the State would bring your truthfulness to the attention of the Court?
A Repeat the question, please.
Q Is it your understanding that after you testify, by truthful testimony, that the State will bring your cooperation and truthfulness to the attention of the Court?
A I was never told that.
Q And you don't have that expectation?
A No.Id., p. 36. Attorney McGuigan then moved on to questions about the statements Ellis gave to the police and the events surrounding the shooting. There were no questions on re-direct or re-cross examination about any understanding or agreement between the state and Ellis.
Judge Mullarkey instructed the jury as follows regarding Ellis and his testimony:
[I]n weighing the testimony of Benjamin Ellis, who is, as I mentioned a self-confessed criminal, you should consider that fact. It may be that you would not believe a person who's committed a crime as readily as you would believe a person of good character. In weighing the testimony of an accomplice who has not yet been sentenced, or whose case, actually, to say correct, has not yet been dismissed of, it's still pending, you should keep in mind that he may be looking for some favorable treatment in the sentence or disposition of his own case . Therefore, his testimony may have been colored by that fact. You must look, with particular care, at the testimony of an accomplice and scrutinize it very carefully before you accept it. There are many offenses that are of such character that the only persons capable, however, of giving useful testimony are those who themselves were implicated in the crime. It's for you to decide that the credibility--what credibility you will give to Mr. Ellis, who has admitted his involvement in criminal wrongdoing, whether you will believe or disbelieve the testimony of Mr. Ellis, who, by his own admission, contributed to the crime charged by the State here. Like all other questions of credibility this is a question you must decide based on all the evidence presented to you. You had an extensive opportunity to observe his demeanor on the stand, he was cross examined extensively. His testimony, I must caution you, must be scrutinized carefully and if you find that he, TT, or Benjamin Ellis intentionally assisted in the commission or aided in the commission of the offense or offenses, which Mr. Gaskin is charged, you must be particularly careful in regard to his testimony. In weighing Mr. Ellis' testimony you should bear in mind that his charges arising from this incident are still pending. The ultimate charges he will face have not been determined, they may be the same, they may be changed. You should keep in mind that he may be looking for favorable treatment in the disposition of his own case . You may consider whether his testimony was colored by that fact and look, with particular care, upon his testimony and scrutinize it very carefully before you accept it. In addition, in considering his credibility you may consider any motive he had for testifying falsely to implicate the accused. While Mr. Ellis has been charged with murder and conspiracy to commit murder of Kendall Williams-Bey he's not yet been tried on those charges. In viewing this you may consider the fact that the State's Attorney may, without approval of the Court, charges [sic] or possibly even drop, which we call nollo the charges, if the State's Attorney states a reason for that nollo on the record . I have no indication nor is there any evidence that that will be done. But Mr. Ellis was cross examined on those issues in general and in particular and you got the opportunity to evaluate his credibility. You may consider all of this in deciding whether Mr. Ellis has any interest in the outcome of this case or any bias, prejudice--any bias, excuse me, or prejudice concerning any party or any matter involved in the case .(Emphasis added.) Petitioner's Exhibit I (Transcript, July 2, 2003), pp. 104-06.
After he testified at both the petitioner's and Trevor Bennet's criminal trials, Ellis, who had initially been charged with murder, pleaded guilty on November 4, 2004, to the reduced charge of accessory to assault in the first degree. The prosecutor informed the court, Miano, J., that Ellis had provided statements and testified that he was the driver of the vehicle that the petitioner and Bennet were in at before and after the shooting. Petitioner's Exhibit 9, p. 6. Judge Miano asked if Ellis had testified for the state, to which the prosecutor responded that Ellis had testified for the state. Id. After the recommended sentence was indicated for the record, Judge Miano canvassed Ellis about his guilty plea and specifically asked Ellis if, " besides that recommendation [as to the sentence], have any other promises been made to you in order to induce you to plead guilty?" Id., p. 11. Ellis responded " No." Id. The court accepted Ellis' guilty plea and found it to be knowing, intelligent and voluntary, that there was a factual basis, and entered into with the effective assistance of counsel. Id., p. 17.
Attorney John Stawicki, counsel for Ellis, addressed the court and stated for the record that Ellis' cooperation had come at great personal risk. According to Attorney Stawicki, the decedent's mother attended the co-defendants' trials and thanked Ellis several times for his role in the prosecutions. Id., p. 18. Judge Miano indicated that he was " . . . sure the State took that into consideration with the offer." Id. Attorney Stawicki reiterated the gratitude of the decedent's mother for Ellis testifying, perhaps even at risk to his own life. Id., p. 19. Ellis was sentenced, after his cooperation in the prosecution of co-defendants was made know to the sentencing court, that same day to a total effective sentence of twenty years of incarceration, execution suspended after the service of five years, followed by five years of probation. This total effective sentence was ordered to run concurrent with another sentence previously imposed. Id.
On April 26, 2001, Ellis was sentenced by the court, Clifford, J., to a total effective sentence of eighteen years to serve, execution suspended after the service of eight years, five of which were the mandatory minimum, followed by five years of probation. See Petitioner's Exhibit 4.
On September 7, 2005, Ellis received a sentence modification for the sentence imposed on November 4, 2004. The sentence modification resulted in a reduction of the to-serve portion from five years down to three years. The transcript of the sentence modification proceeding reflects that the sentence modification was pursuant to an agreement by the parties, although the specifics of the agreement were not disclosed and the court, Miano, J., which had been the original sentencing court, indicated it was not going to delve into the specifics of the agreement between the state and Ellis. See Petitioner's Exhibit 10, p. 3. Judge Miano additionally ordered the Department of Correction to give Ellis presentence confinement credits that had not been applied. Several weeks later, on November 23, 2005, the sentence for Ellis' previously imposed sentence was also reduced, so that his to-serve portion for that sentence was reduced from eight years down to the mandatory minimum of five years to serve. The sentence modification application, motion and order form indicates that the reason for the modification was " Substantial aid and cooperation in several serious felony cases. Defendant's efforts and motivation toward rehabilitation with education and job training." Petitioner's Exhibit 4.
At the habeas trial, Ellis testified that he was not promised a reduction in charges or anything in exchange for his testimony. Ellis hoped that his testimony would help him. According to Ellis, it was not his understanding that he would have his cooperation reported to his eventual sentencing judge, but he hoped that he would be rewarded. Ellis described his reduction in sentence stemming from a jail credit problem and that his sentence was not modified. Attorney Stawicki, who previously represented Ellis, testified that the prosecutor made no specific promises to Ellis in exchange for his cooperation. According to Attorney Stawicki, the prosecutor only promised that he would convey any cooperation by Ellis to the eventual sentencing judge. Former prosecutor Victor Carlucci similarly testified that he made no express promises, but that Ellis was only promised that his testimony and degree thereof would be made known by the state to his sentencing judge.
DISCUSSION
The respondent has raised the affirmative defense of procedural default because the petitioner did not raise these claims on direct appeal. It is well established that procedural default is an affirmative defense that must be raised by the respondent in the return. See Practice Book § 23-30(b); Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008) (" Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice"). " In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014).
" While the United States Supreme Court in Wainwright [v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), ] applied the doctrine of procedural default as a bar to collateral attacks on criminal convictions, the court expressly declined to elucidate the parameters of cause and prejudice. Wainwright v. Sykes, supra, 433 U.S. 87. The court stated, however, that the prejudice must be actual and not merely speculative. Id. Following Wainwright, the Supreme Court, in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), opined that, in order to satisfy the prejudice component of the cause and prejudice doctrine, one must 'shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' (Emphasis in original.) Id., 170." Hinds v. Commissioner of Correction, supra, 151 Conn.App. 858.
The petitioner's reply to the return denies that he has procedurally defaulted. As cause, the petitioner asserts that he did not bring " this claim in his appeal . . . [because] at the time his appeal was pending there was no additional evidence available to the Petitioner or his appellate attorney which could have shown Benjamin Ellis received consideration for his testimony. It was not until later that evidence became available to prove this claim. It was not possible for the Petitioner's appeal to bring this claim." The prejudice resulting from this, according to the reply, is that " because the jury hearing his criminal trial did not know Benjamin Ellis' self-serving motivations for testifying against the Petitioner, and the State's Attorney allowed him to testify in an untruthful manner without correcting his testimony. This is the first opportunity that the Petitioner has had to bring this claim, and the Petitioner is bringing this claim in the correct forum."
The respondent's amended return only asserts that the petitioner procedurally defaulted because he did not raise the claims in the second amended petition on direct appeal. The amended return does not, however, assert procedural default premised on the petitioner failing to raise his claims in the criminal trial court prior to seeking habeas corpus relief. Because a habeas court is constrained by the parties' pleadings, it will limit its discussion of procedural default to the failure to raise the claims on direct appeal. See, e.g., Ankerman v. Commissioner of Correction, 104 Conn.App. 649, 654-55, 935 A.2d 208 (2007) (improper for habeas court to find claim procedurally defaulted where respondent's return did not raise that affirmative defense as to that claim), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008).
The court will first address the cause for the procedural default asserted by the petitioner. The petitioner had a direct appeal pending in the Supreme Court for nearly an entire decade before it was withdrawn. During that time span, Ellis resolved all of his criminal matters at issue in this habeas corpus no later than the date of the last sentence modification, November 23, 2005. The petitioner filed his pro se petition on September 10, 2012, approximate seven months prior to withdrawing the appeal on April 23, 2013. There was no evidence presented that explains why the petitioner withdrew his appeal.
The petitioner avers as cause for the procedural default that the evidence necessary to support his claims was not available at the time his direct appeal was pending. The court disagrees with the petitioner's averment because it is incorrect. The evidence presented by the petitioner at the habeas trial that provides the basis for his claims (i.e., that there was an undisclosed agreement between the prosecutor and Ellis, as demonstrated by both the sentences Ellis received and their modifications) was known or knowable from November 23, 2005, until April 23, 2013. Given how long the appeal was pending before it was withdrawn, the petitioner could have filed, pursuant to Practice Book § 42-55, a petition for a new trial based on newly discovered evidence. Section 42-55 expressly authorizes action on the petition for new trial even though an appeal is pending. The record from any proceedings conducted by the criminal court, the correct forum for the petitioner's claims, could then augment the record of the direct appeal.
See State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000) (establishing procedures by which defense may show to the criminal court, even if supporting evidence is discovered post-conviction, that the state's adjustment of charges to a witness pleading guilty, followed by a plea agreement involving a sentence that is contingent on the witness's cooperation, all may provide incentive for a witness to testify for the state against someone being prosecuted); Ouellette v. Commissioner of Correction, 154 Conn.App. 433, 438 n.2, 107 A.3d 480 (2014).
The prejudice that inured to him, according to the petitioner, is that the jury did not know of Ellis' self-serving motivations for testifying against the petitioner, as well as that the prosecutor did not correct his untruthful testimony. Again, the court disagrees with the petitioner's assertion that he was prejudiced in the manner he claims. Ellis was extensively questioned by Attorney McGuigan about his possible motivations for testifying. Furthermore, Judge Mullarkey's instructions to the jury fully addressed all potential motivations that might influence Ellis' testimony, including the discretion the prosecutor had to reduce or drop charges and that his cooperation could be taken into consideration when eventually sentenced. As to not correcting untruthful testimony by Ellis about the state's promise to make his eventual sentencing judge aware of his cooperation, the state was under no obligation to correct it because that limited promise had been disclosed to the defense. See, e.g., Hines v. Commissioner of Correction, 164 Conn.App. 712, 138 A.3d 430 (2016), citing State v. Ouellette, 295 Conn. 173, 185-87, 989 A.2d 1048 (2010). The court finds, therefore, that the petitioner has failed to show how he was prejudiced by any cause he asserts for the procedural default.
Based upon the foregoing, the court concludes that the petitioner has failed to show both the required cause and prejudice to overcome the procedural default. The claims in the second amended petition could, and should, have been raised on direct appeal, after the criminal court had an opportunity to resolve a petition for a new trial and/or a Floyd hearing, before being raised in a habeas corpus petition. At its core, the doctrine of procedural default concerns claims being raised in the first instance in the appropriate forum. The petitioner here has failed to raise his claims in the proper forum and is barred by his procedural default from having the claims raised in his second amended petition decided on the merits in the habeas corpus forum.
Even if the petitioner were not procedurally defaulted, the court notes that the petitioner nevertheless failed to meet his burden of proof on the merits of his claims. The petitioner's claims are relatively narrow and focused, namely that his rights to due process and a fair trial were violated because the state, contrary to the requirements of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Adams v. Commissioner of Correction, 309 Conn. 359, 71 A.3d 512 (2013), failed to correct false testimony by Ellis and/or failed to disclose exculpatory materials. The petitioner alleges that all testimony during the petitioner's criminal trial by Ellis and others regarding any consideration he was receiving in exchange for his testimony was false.
The court is not persuaded by the petitioner's arguments. First, the petitioner presented no evidence that the defense was not aware of the state's promise to Ellis that it would apprise the sentencing court of his cooperation. In fact, the transcript of June 9, 2003, to the contrary shows that defense counsel were aware that the state had promised Ellis that it would inform his sentencing judge of his cooperation and assistance. Petitioner's Exhibit 11, p. 49-50.
" 'The law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. Brady v. Maryland, ; State v. Simms, 201 Conn. 395, 405, 518 A.2d 35 [and] n.8, 201 Conn. 395, 518 A.2d 35 (1986). In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.' (Internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 271, 49 A.3d 705 (2012). 'It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused . . . A plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady.' (Citations omitted; internal quotation marks omitted.) State v. Floyd, [253 Conn. 700, 736-37, 756 A.2d 799 (2000)]." Diaz v. Commissioner of Correction, 152 Conn.App. 669, 678-79, 100 A.3d 856, cert. denied, 314 Conn. 937, 102 A.3d 1114 (2014).
" 'The Supreme Court established a framework for the application of Brady to witness plea agreements in Napue v. Illinois, [360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)], and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) . . . Drawing from these cases, [the Appellate Court] has stated: [D]ue process is . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears . . . If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception . . . Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading . . . A new trial is required if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'
" 'The prerequisite of any claim under the Brady, Napue and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state . . . Normally, this is a fact based claim to be determined by the trial court, subject only to review for clear error.' (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Ouellette, [295 Conn. 185-87]." Hines v. Commissioner of Correction, supra, 164 Conn.App 728. The present matter is materially indistinguishable from Hines in that here, as in Hines, there was no undisclosed agreement or understanding. Attorney McGuigan was present when the state on June 9, 2003, disclosed the limited extent of its agreement with Ellis. " Thus, the state was not required under Napue and its progeny to correct [Ellis'] allegedly perjured testimony." Id. Consequently, the petitioner has in no way substantiated his claims even if he were deemed to not have procedurally defaulted.
The petitioner cites to Adams in support of his contention that there was a Brady violation. Adams is readily distinguishable because the state in Adams failed to correct false and misleading testimony by a key witness, Andre Clark, who had " . . . testified that he faced a maximum sentence of thirty-eight years imprisonment for [his] pending charges, even though the judge who accepted his pleas . . . had placed a four-year limitation on Andre's sentence, with the possibility of a more lenient sentence, conditioned on Andre's cooperation with the state." Adams v. Commissioner of Correction, supra, 309 Conn. 363.
Thus, in Adams, contrary to the petitioner's case, the cooperating witness falsely testified after pleading, and the eventual sentence was explicitly conditioned on such cooperation and, furthermore, was capped at a term of years that was approximately one-tenth of what the cooperating witness falsely testified he faced at sentencing. Here, Ellis pleaded guilty and was sentenced more than one year after testifying in the petitioner's criminal trial and shortly after testifying at Bennet's criminal trial, and the eventual sentencing judge neither indicated a cap on the sentence nor that the sentence could be below that cap as determined by the extent of cooperation. The agreement between the state and Ellis was fully disclosed to defense counsel, who extensively questioned Ellis. Adams does not support the petitioner's claims.
CONCLUSION
Judgment shall enter for the respondent. The petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare a judgment file and file it with the clerk within thirty days of the date of this decision.
It is so ordered.