Opinion
CV144005889
04-04-2019
Edwin SANCHEZ #239527 v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in a matter in the Judicial District of New Britain, where he was charged with murder and conspiracy to commit murder. He was represented at the trial level by Attorney Thomas Farver, and elected to be tried by a jury. The following are the facts that could have been reasonably found by the jury:
Darence Delgado was murdered on May 2, 1995, on North Street in New Britain. Prior to the murder, Jose Pabon was with the defendant on Willow Street, across the street from a basketball court where Delgado and Jay Vasquez were talking. Pabon was a neighbor of the defendant. That afternoon, the defendant asked Pabon to retrieve a gun that Vasquez had left at Pabon’s house. After returning with the gun, Pabon noticed that Delgado was no longer at the basketball court. Pabon offered the gun to the defendant, but the defendant told him to hold on to it. The defendant then told Pabon to walk with him to the corner of North and Willow Streets.
When they arrived at the corner, the defendant told Pabon, "When I start shooting, you shoot." Turning onto North Street, they saw Vasquez and Delgado, who was sitting on a bicycle, approximately twenty-five feet away. The defendant approached them while Pabon remained at the corner. The defendant 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 defendant continued to shoot him. The defendant turned around, looked at Pabon and spread his arms. Pabon pulled out the gun he had retrieved and fired four shots at Delgado. The defendant turned toward Delgado and again fired at him. The defendant 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 defendant 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.State v. Sanchez, 84 Conn.App. 583, 585-86, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004). The jury returned verdicts of guilty on both charges on January 24, 2000, and the petitioner was subsequently sentenced to a total effective sentence of sixty years to serve. The petitioner appealed his convictions, which were affirmed. Id. The petitioner also filed a prior petition for habeas corpus collaterally attacking his convictions on November 2, 2004. Following a trial, that petition was denied; Sanchez v. Warden, Superior Court judicial district of Tolland, Docket No. CV04-4000221 (Newson, J., Dec. 15, 2011); and a subsequent appeal from that decision was dismissed. Sanchez v. Commissioner of Correction, 147 Conn.App. 903, 90 A.3d 934 (2013).
The petitioner commenced the present action on December 20, 2013. The amended petition dated October 29, 2018, alleges four separate counts: Count One, ineffective assistance of criminal trial counsel; Count Two, ineffective assistance of prior habeas counsel; Count Three, actual innocence; and Count Four, denial of the right to due process because of the State’s failure to disclose an agreement with a witness and also because of an improper jury instruction. The respondent filed a return generally denying the allegation in the petition, and also raised the defense of procedural default to the petitioner’s due process claims. The petitioner filed a reply refuting the respondent’s procedural default defenses.
The return and reply to the return in this case are actually dated after the operative petition, because the parties agreed that the petitioner could file an amended petition just before trial that removed certain claims and corrected some scriveners errors, but which did not materially impact the return or reply that had already been filed.
The trial commenced on October 30, 2018, where the Court raised, pursuant to Practice Book § 23-29, whether Counts One, Three, and the claim of prosecutorial misconduct in Count Four were barred by res judicata, because the petitioner had raised and litigated those claims in previous actions. The Court also raised the issue of whether the claim of due process violation because of an improper jury instruction should not be dismissed on grounds of procedural default under Practice Book § 23-29(5), the "catchall" section. The parties were given the opportunity following the close of evidence to submit post-trial briefs on those issues. Further factual and procedural background will be addressed as needed throughout this decision.
II. Law and Discussion
Motion to Dismiss Count One
"The doctrine of res judicata provides that a former judgment [on the merits] 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 ..." (Emphasis added.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). "[I]n 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 limited] to claims that actually have been raised and litigated in an earlier proceeding." (Emphasis added.) Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088 (2012). "[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ... But 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." Id.
Count One of the present petition alleges ineffective assistance against the petitioner’s criminal trial counsel based on various claims of failure to investigate witnesses, failure to conduct a more thorough factual investigation, and for abandoning the theory that the shooting of the victim was an unrelated gang retaliation perpetrated by other parties in the area. Although stated in somewhat different terms, the petitioner made nearly identical claims of ineffective assistance against his criminal trial counsel in CV04-4000221, and the present petition fails to allege any new facts or to set forth any new evidence not reasonably discoverable by the petitioner at the time of his prior habeas. Both petitions also seek the same relief, that the Habeas Court vacate the petitioner’s conviction and order him released. Therefore, the claim of ineffective assistance against trial counsel in Count One is barred by the doctrine of res judicata, and is dismissed. Id.
Motion to Dismiss Count Three
Count Three of the present petition claims actual innocence and asserts that the basis is that Angel Vasquez, Efrain Padua, and Juan Vazquez are expected to testify that petitioner was not the shooter of the victim. Specifically, the petition alleges that Angel Vazquez "will testify that he gave false testimony" that the petitioner was the shooter, that Efrain Padua "will testify that [the petitioner] was not the shooter," and that Juan Vazquez "will testify that the petitioner ... was not the shooter and that that he would have testified during the trial that Ian Tardiff and Ramon Pabon" were the actual shooters.
The petitioner also made a claim of actual innocence in Count Two of CV04-4000221, where he alleged that the victim was "killed by Mr. [Ramon] Pabon and one or more other persons" and that "Mr. Pabon in fact falsely testified against [the petitioner] to obtain the benefits he received [in a plea deal]." The request for relief in the current and former petition was for the petitioner’s convictions to be vacated. The issue raised by the Court was whether the prior actual innocence claim, based on an allegation that one witness falsely testified, barred a subsequent actual innocence claim resting on a claim that a separate witness falsely testified about the same subject. More specifically, the question is whether the petitioner has asserted new facts or new evidence not reasonably discoverable at the time of the prior claim. Practice Book § 23-29(3).
To the extent that the present claim of actual innocence rests on allegations related to testimony offered by Juan Vazquez, that cannot be said to be information that could not have been discovered through due diligence at the time of the prior habeas, because he testified as a witness at the trial of CV04-4000221. Likewise, any information offered through Angel Vazquez would easily have been discovered through due diligence, since he was a witness who testified against the petitioner at his criminal trial, and the petitioner himself referenced his allegedly false testimony when the petitioner testified before this Court in CV04-4000221. Even if the Court assumes the information credible that petitioner’s trial counsel was prohibited from speaking to Angel Vasquez prior to the criminal trial by Mr. Vasquez’s attorney, there is no evidence that he was similarly unavailable or unwilling to speak to anyone prior to the trial of CV040-4000221 nearly 11 years later. Finally, to the extent this "actual innocence" claim relies on testimony from Efrain 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 CV04-4002211 through a different witness.
In sum, the petitioner previously raised a claim of actual innocence in CV04-4000221, which was denied, and the present allegations fail to offer new facts or evidence that could not have been discovered through reasonable diligence at the time of the prior habeas trial. In fact, this Court finds that the current claim rests on information that was actually known to the petitioner at the time of the prior habeas proceeding. Since the petitioner also seeks the same relief now as he did in CV04-4000221, this claim is also barred on ground of res judicata and is dismissed. Carter v. Commissioner of Correction, supra, 133 Conn.App. at 393.
Motion to Dismiss Count Four
In Count Four, the petitioner alleges two separate violations of his right to due process at the trial level. The first claim asserts that he was denied due process because of the State’s failure to disclose the full details of a pretrial agreement with a Jose Pabon, a cooperating witness. The Court raised the issue of whether res judicata barred the petitioner from litigating the issue here, since he raised a similar claim on direct appeal. Upon a more thorough review of the Appellate decision, however, the actual substance of the petitioner’s attack on the State’s deal with his coconspirator was whether allowing the co-conspirator, also a cooperating witness, to plead to a non-conspiracy offense undermined the legal ability to prosecute him for "conspiracy." State v. Sanchez, supra, 84 Conn.App. at 593. Therefore, consideration of the claim framed here would not be barred by res judicata. Carter v. Commissioner of Correction, supra, 133 Conn.App. at 393.
The second claim in Count Four is that the petitioner was denied his right to a fair trial "when the Judge improperly instructed the jury regarding double jeopardy, which unfairly prejudiced the petitioner" in violation of his due process rights. The Court raised the issue whether this claim should be dismissed on grounds of procedural default under the authority of the "catchall" provision of Practice Book § 23-29, subsection (5). In re-considering Diaz v. Commissioner of Correction, 157 Conn.App. 701, 706-07, 117 A.3d 1003 (2015), appeal dismissed, 326 Conn. 419, 165 A.3d 147 (2017) and Barlow v. Commissioner of Correction, 150 Conn.App. 781, 786-87, 93 A.3d 165 (2014), however, the Court has come to the conclusion that these decisions foreclose a Court from sua sponte raising procedural default, even under the "catch-all" provision of § 23-29. Diaz v. Commissioner of Correction, supra, 157 Conn.App. at 706.
Practice Book § 23-29— Dismissal. The judicial authority 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:
"[I]n Connecticut, although the petitioner has the burden of proving cause and prejudice ... that burden does not arise until after the respondent raises the claim of procedural default in [the] return ... [When] the respondent [does] not plead procedural default as an affirmative defense ... the court [may] not find that the petitioner was procedurally defaulted ..." (citing Barlow v. Commissioner of Correction, 150 Conn.App. 781, 786-87, 93 A.3d 165 (2014)).
Since the respondent did raise procedural default as a special defense in its return, the Court will address the claim on that basis. "Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice ... Because [c]ause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong." (Citations omitted, internal quotation marks omitted.) Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009).
The Court must first note that the written petition specifically claims that the jury instruction error was related to "double jeopardy," while the petitioner’s post-trial brief on the matter, and the evidence elicited at trial, addressed whether the trial court’s Pinkerton instruction on vicarious conspiratorial liability was erroneous because it eliminated one of the elements of the charge. The evidence adduced at trial also related to the Pinkerton charge. This is important, because the claim asserted in the post-trial brief rests on different factual grounds, and expresses a different legal theory, than the allegations specified in the complaint. Given the respondent cross examined the petitioner’s witness on the Pinkerton evidence, and did not otherwise raise an objection that it fell outside of the complaint, the Court will assume that the respondent was either aware that the petition contained a scrivener’s error, or simply decided not to object that the evidence offered appeared to be beyond the scope of the petition. In order to be fair to both sides, however, the Court will address the special defense of procedural default as if it were addressed to both "double jeopardy" and the Pinkerton instruction.
Both parties were also provided with the opportunity to submit post-trial briefs in this matter to address the merits of the case, however, the respondent indicated in writing that they wished to waive that right and rest on the record before the Court.
Assuming that the intended claim was the "double jeopardy" claim reflected in the petition, there is nothing in the record of this case that the petitioner ever raised any claim regarding his "double jeopardy" rights prior to this petition. A "double jeopardy" claim is clearly one of constitutional magnitude that should be raised before the trial court. E.g., State v. Price, 208 Conn. 387, 390-91, 544 A.2d 184 (1988) (failure to raise double jeopardy claim prior to trial will be considered a waiver of the defense against prosecution). The petitioner has also offered no evidence before this Court as to any reason why the claim was not raised before the trial court, or as to the prejudice he suffered. As such, the due process claim on grounds of "double jeopardy" was procedurally defaulted and is dismissed. Zabian v. Commissioner of Correction, supra, 115 Conn.App. at 152.
Alternatively, assuming that the due process claim was that the Pinkerton vicarious liability jury instruction was erroneous, the Court also finds that claim has been procedurally defaulted. Id. First, there is nothing in the petition supporting the assertions in the petitioner’s post-trial brief that the "cause" for failing to pursue this claim was based on trial counsel’s ineffectiveness, nor did the petitioner elicit any such evidence from trial counsel. There was evidence elicited from trial counsel as to whether he was aware of, and generally objected to, the Pinkerton charge, because he believed the conspiracy instruction to the jury went beyond the original charges, but not as to whether he was aware, or why he failed to object to the jury instruction for allegedly being erroneous or missing an element. There was also no evidence presented before this Court as to why the claimed instructional error was not raised on appeal, or in the prior habeas petition. In other words, there is no evidence to support the "cause" for the petitioner missing several prior opportunities to have raised this issue. As such, this claim, too, is procedurally defaulted, and is dismissed. Id.
Count Two— Ineffective Assistance of Prior Habeas Counsel
The petitioner’s sole remaining claim, which the Court will address on its merits, is the claim that prior habeas counsel, Attorney Joseph Visone, rendered ineffective assistance in representing the petitioner in TSR-CV04-4000221. Specifically, the petitioner alleges that Attorney Visone was ineffective for not presenting the testimony of Efrain Padua and the victim’s mother, failed to properly question Juan Vazquez about his knowledge of the actual shooters, and failed to present evidence that the shooting of the victim was a gang-related retaliation. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable ... Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial." (Citations omitted.) Lozada v. Warden, 223 Conn. 834, 842-44, 613 A.2d 818 (1992). "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
To the extent the claim that Attorney Visone was ineffective for failing to present the testimony of "the victim’s mother" (Petition, ¶46), that witness did not testify at the habeas trial. Therefore, that claim fails, as a matter of law, and no further analysis is necessary. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn . 905, 731 A.2d 309 (1999).
This claim is really just another way of asserting the petitioner’s third-party culpability claim that Pabon and/or Tardiff were responsible for the shooting of the victim, so the Court will view it as that, instead of addressing it separately.
With regards to Juan Vazquez the Court first notes that Attorney Joseph Visone did not testify in this matter. 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." (Citations omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, 974, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). Notwithstanding, the petitioner confuses ineffective assistance in his prior habeas with the lack of credibility of his witness.
This Court is in the unique position that it personally heard Juan Vazquez testify at the prior habeas, as well as now. First, the witness did not add anything substantive to the testimony he provided in 2011. This is significant, because the petitioner’s burden in showing prejudice requires some evidence that current habeas counsel was able to elicit some substantive and material information from this witness that prior habeas counsel failed to. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Additionally, the Court did not find Mr. Vazquez credible in his identification of Ian Tardiff as the actual shooter back in 2011, and his present testimony did not change the Court’s assessment. For instance, Mr. Vazquez continues to attempt to exonerate the petitioner in his testimony, has he did back in 2011, by insisting that the petitioner was not present at the scene of the shooting, despite the fact that the petitioner admits to being present in his 1996 statement to the police, in his 2011 testimony, and when he testified during the present trial. In conclusion, having failed to elicit any substantively different or new information from Angel Vazquez from he testified to back in 2011, and having failed to rehabilitate his credibility issues, the petitioner has failed to establish any prejudice resulted because of prior habeas counsel’s questioning of this witness. As such, the claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. supra, 783.
Exhibit D.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus on Count Two, after consideration on the merits, is DENIED. Counts One and Three are DISMISSED on grounds of res judicata. The Court finds in favor of the respondent on the affirmative defense to Count Four, which is DISMISSED on grounds of procedural default.
(1) the court lacks jurisdiction;
(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;
(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition;
(4) the claims asserted in the petition are moot or premature;
(5) any other legally sufficient ground for dismissal of the petition exists.