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VICTOR AYALA v. COMMISSIONER OF CORRECTION

(AC 36739)

Lavine, Beach and Pellegrino, Js.

Argued April 6—officially released September 8, 2015

(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Steven B. Rasile, assigned counsel, for the appellant (petitioner).

Lisa Herskowitz, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Rebecca A. Barry, assistant state’s

attorney, for the appellee (respondent).
Opinion

BEACH, J. The petitioner, Victor Ayala, appeals from

the judgment of the habeas court denying his petition

for habeas corpus relief. On appeal, the petitioner

claims that the habeas court erred in not finding that his

trial counsel provided ineffective assistance by failing to

investigate and present the testimony of two witnesses.

We affirm the judgment of the habeas court.

The facts regarding the petitioner’s underlying conviction, as recited by this court on direct appeal, are

as follows: ‘‘On November 4, 2007, the [petitioner] twice

visited the apartment of the victim [Terry Weaver] and

her husband [Christopher Weaver]. On the first occasion, the [petitioner] knocked on the door and the victim

allowed him to enter and search her residence for his

girlfriend [Marilyn Lozada, also known as Chena]. Later

that night, the [petitioner] returned to the [Weavers’]

residence and, unbeknownst to [the victim], waited outside, hidden from the view of the door’s peephole, until

the victim opened the door to get some air. When she

opened the door, the [petitioner] pushed his way into

the apartment and stuck what she described as a black

handgun into her stomach, threatened to kill her and

inquired about the whereabouts of his girlfriend. The

victim informed the [petitioner] that his girlfriend was

not at her residence, at which time the [petitioner]

pushed her and demanded that she sit on the couch.

The [petitioner] then searched the residence for his

girlfriend, and when he was unable to find her, he left

the residence.

‘‘The victim then called the police to report the incident. Special weapons and tactical unit members

responded to the call and searched the [Weavers’] residence. Local patrol officers also arrived on the scene

and questioned the victim about the [petitioner]. She

provided the officers with the [petitioner’s] name and

his physical description. The victim also dictated and

signed a statement for the police regarding the incident.

The police then searched the vicinity for the [petitioner]. After locating him, they conducted a one-onone identification [procedure] whereby the victim was

asked to look at the [petitioner] and determine if he

was the person who committed the alleged crimes at

her residence. The victim positively identified the [petitioner] as the individual who had entered her residence

[in the early hours of] that morning.

‘‘The [petitioner] subsequently was arrested and

charged in a six count information with burglary in the

second degree with a firearm in violation of [General

Statutes] § 53a-102a (a), burglary in the first degree in

violation of [General Statutes] § 53a-101 (a) (3), kidnapping in the second degree with a firearm in violation

of [General Statutes] § 53a-94a (a), threatening in the

second degree in violation of [General Statutes] § 53a-
62 (a) (1) and interfering with an officer in violation of

[General Statutes] § 53a-167a (a). Afterthe [petitioner’s]

arrest, the victim and her husband signed statements

recanting their allegations against the [petitioner].

When questioned at trial, however, they testified that

they signed those statements due to pressure from the

[petitioner’s] girlfriend and asserted that the victim’s

initial statement to the police and her husband’s testimony at trial were the truthful account of the incident.

After trial, the [petitioner] was convicted on all counts

and was sentenced to a total effective term of fourteen

years of incarceration.’’ (Footnotes omitted.) State v.

Ayala, 133 Conn. App. 514, 516–17, 36 A.3d 274, cert.

denied, 304 Conn. 913, 40 A.3d 318 (2012). The petitioner’s conviction was affirmed on direct appeal. Id., 526.

The petitioner filed an amended petition for a writ

of habeas corpus on September 25, 2013. Following a

trial, the habeas court issued a memorandum of decision denying the amended petition. The habeas court

granted the petition for certification. This appeal

followed.

‘‘Our review of the judgment of the habeas court is

carefully circumscribed. The underlying historical facts

found by the habeas court may not be disturbed unless

the findings were clearly erroneous. . . . Whether the

representation a [petitioner] received . . . was constitutionally inadequate is a mixed question of law and

fact. . . . As such, that question requires plenary

review by this court unfettered by the clearly erroneous

standard.’’ (Internal quotation marks omitted.) Vivo v.

Commissioner of Correction, 90 Conn. App. 167, 173,

876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d

1253 (2005).

‘‘To succeed on a claim of ineffective assistance of

counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Strickland requires that a petitioner satisfy both

a performance prong and a prejudice prong.’’ (Internal

quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn. App. 583, 587–88, 99

A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d 1115

(2014). ‘‘The first component of the Strickland test,

generally referred to as the performance prong,requires

that the petitioner show that counsel’s representation

fell below an objective standard of reasonableness.

. . . In Strickland, the United States Supreme Court

held that [j]udicial scrutiny of counsel’s performance

must be highly deferential. It is all too tempting for a

[petitioner] to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy

for a court, examining counsel’s defense, after it has

proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable. . . .

‘‘Even if a petitioner shows that counsel’s perfor-
mance was deficient, the second prong, or prejudice

prong, requires that the petitioner show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’’ (Internal quotation marks omitted.)

Martinez v. Commissioner of Correction, 147 Conn.

App. 307, 313–14, 82 A.3d 666 (2013), cert. denied, 311

Conn. 917, 85 A.3d 652 (2014). ‘‘In making [the prejudice] determination, a court hearing an ineffectiveness

claim must consider the totality of the evidence before

the judge or the jury. . . . [A] verdict or conclusion

only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support. . . . [T]he ultimate focus of inquiry

must be on the fundamental fairness of the proceeding

whose result is being challenged. . . . The benchmark

for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’’ (Citation omitted; internal quotation marks omitted.)

Sanchez v. Commissioner of Correction, 314 Conn. 585,

606–607, 103 A.3d 954 (2014).

The petitioner claims that the habeas court erred

in finding that he failed to demonstrate that he was

prejudiced by his counsel’s performance. He first argues

here, as he did in the habeas court, that his trial counsel

was ineffective for failing to investigate and to present

the testimony of two witnesses, the petitioner’s brother

Fernando Ayala (Fernando), and Jesus Gonzalez. The

petitioner asserted that these witnesses could have provided to the jury evidence that he resided at the Weavers’ apartment.1 The petitioner argues that his residency

at the scene of the crime would have defeated the element of unlawful entry, common to both burglary

counts.2 Additionally, the petitioner argues that the testimony of Gonzalez and Fernando could have served

to discredit all of the Weavers’ testimony.

The respondent, the Commissioner of Correction,

argues that the habeas court correctly concluded that

it was not reasonably probable that the testimony of

Fernando and Gonzalez would have affected the outcome of the petitioner’s trial.3 The respondent argues

that the testimony of Fernando and Gonzalez would

have merely echoed Katherine Campbell’s testimony,4

and the jury would have found them less credible than

Campbell because of kinship and criminal records.5

Additional facts are helpful to the resolution of this

claim. The habeas court determined that at the time of

the petitioner’s arrest, he was found by police in a

stairwell of an apartment building on Cedar Street in

Meriden, a few blocks from the Weavers’ apartment.

He was wearing his coat inside out, and he held a bandana and a cap in his hand. When confronted by the

police, the petitioner gave a false name and birth date,
denied that he had been in the Weavers’ apartment

building that night, and explained that he had been

visiting a friend in the Cedar Street building, but could

not remember the friend’s name or apartment number.6

At the underlying criminal trial, Terry Weaver testified that Lozada had been living in the apartment in

exchange for crack cocaine. According to Weaver, the

petitioner occasionally stayed in the apartment with

Lozada, but he did not have a key, and Lozada had

vacated the apartment a few days before the incident.

Trial counsel presented one defense witness at the

underlying criminal trial, Campbell, the petitioner’s

friend. She testified at the criminal trial that she had

either picked up or dropped off the petitioner in front

of the Weavers’ apartment building three or four times,

including once about one week before the incident, but

that she never entered the building herself.

Fernando testified at the habeas trial: that he frequently stopped by the Weavers’ apartment to see the

petitioner, sometimes unannounced; that the petitioner

had a key that he used to enter the apartment;7that the

Weavers never seemed surprised to see them; that he

and the petitioner would spend time in the petitioner’s

bedroom; that he sometimes paid the petitioner’s rent

to the Weavers, in either cash or drugs; and that the last

time he had picked up the petitionerfrom the apartment

was about one and one-half days before the incident.

He also testified that, although the bed and sofa in the

petitioner’s bedroom did not belong to the petitioner,

he kept several of his possessions there, including a

small television, a nightstand, clothing, and some personal items. Fernando picked up these possessions

from the Weavers’ apartment a few months after the

petitioner’s arrest. Gonzalez testified at the habeas trial

that he visited the petitioner three times at the Weavers’

apartment, and stayed overnight once.

The habeas court concluded that the petitioner had

not met his burden to prove prejudice under Strickland

regarding the potential testimony of Fernando and Gonzalez.8 The court concluded that the testimony of Fernando and Gonzalez would have been only ‘‘peripherally

inconsistent’’ with that of the Weavers. The habeas

court did not explicitly find the testimony of Fernando

and Gonzalez credible.9

We agree with the habeas court that even if the testimony of Fernando and Gonzalez had been presented

at the petitioner’s criminal trial, there was not a reasonable probability that the result of the proceeding would

have been different; our confidence in the outcome has

not been undermined. The case against the petitioner

was fairly strong. The state presented two eyewitnesses,

the Weavers, who knew the petitioner, called the police,

positively identified him, and testified against him at

trial. There was evidence that the petitioner had lied

to the police and had attempted to disguise his appear-
ance at the time of his arrest.

The petitioner’s putative witnesses would not have

aided his defense significantly. The differences between

the testimony of Fernando and Gonzalez at the habeas

trial and the testimony of the Weavers and Campbell

at the underlying criminal trial were minor and largely

reconcilable. As the habeas court aptly stated,

‘‘Although the Weavers denied that the petitioner was

given a key to their apartment, the petitioner could have

received the key, or a copy, from Lozada. The visits by

[Fernando and Gonzalez] to the apartment [are] compatible with the Weavers’ version that the petitioner

occasionally stayed at the apartment with his girlfriend.’’ Casual permission to stay with Lozada is different from authority to enter and remain in the premises

as a matter of right, and whether the petitioner had

ever paid rent in some fashion is not dispositive. Neither

of the putative witnesses would have established that

the petitioner had the right to be on the premises at

the time of the crime. Even if he had been a frequent

guest, either of the Weavers or of Lozada, he was not

there as a matter of right, and he could still be found

guilty of burglary. See generally State v. Stagnitta, 74

Conn. App. 607, 612, 615, 813 A.2d 1033 (‘‘To enter

unlawfully means to accomplish an entry by unlawful

means, while to remain unlawfully means that the initial

entering of the building . . . was lawful but the presence therein became unlawful because the right, privilege or license to remain was extinguished. When either

of these situations is established, the threshold element

of burglary is present. . . . A license in real property

is defined as a personal, revocable, and unassignable

privilege, conferred either by writing or parol, to do one

or more acts on land without possessing any interest

therein. . . . Generally, a license to enter premises is

revocable at any time by the licensor. . . . It is exercisable only within the scope of the consent given. . . .

The phrase, licensed or privileged, as used in General

Statutes § 53a-100 [b] is meant as a unitary phrase,

rather than as a reference to two separate concepts.’’

[Citations omitted; emphasis in original; internal quotation marks omitted.]), cert. denied, 263 Conn. 902, 819

A.2d 838 (2003).

Furthermore, the Weavers were cross-examined at

the underlying criminal trial regarding their extensive

drug use, criminal activity, and recantation oftheir original statements. The jury believed the Weavers’ testimony. Additional testimony regarding the petitioner’s

residency, indirect in any event, would most likely not

have swayed the jury to disbelieve the whole of the

Weavers’ testimony. We conclude that there is not a

reasonable probability that the testimony of Fernando

and Gonzalez would have altered the jury’s verdict, and

our confidence in the verdict is not undermined. The

habeas court did not err in concluding that the petitioner was not prejudiced by his trial counsel’s per-
formance.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner also argued in the habeas court that his trial counsel was

ineffective for failing to investigate and to present the testimony of his

girlfriend, Lozada, who could also have testified about his residency. The

habeas court found that trial counsel attempted to locate Lozada personally

and through an investigator, and spoke to her on the telephone. Lozada was

not called as a witness at the habeas trial, and her whereabouts were

unknown. The habeas court concluded that the petitioner had not met

his burden to prove deficient performance or prejudice under Strickland

regarding Lozada. The petitioner does not challenge these conclusions on

appeal.

2 The petitioner was convicted of burglary in the second degree with a

firearm in violation of § 53a-102a (a), and burglary in the first degree in

violation of § 53a-101 (a) (3). Burglary in the second degree with a firearm

incorporates the definition of burglary in the second degree, which appears

in General Statutes § 53a-102 (a) and provides: ‘‘A person is guilty of burglary

in the second degree when such person enters or remains unlawfully in

a dwelling, while a person other than a participant in the crime is actually

present in such dwelling, with intent to commit a crime therein.’’ (Emphasis added.)

Section 53a-101 (a), defining burglary in the first degree, states in relevant

part: ‘‘A person is guilty of burglary in the first degree when . . . (3) such

person enters or remains unlawfully in a dwelling at night with intent to

commit a crime therein.’’ (Emphasis added.)

3 The habeas court did not make an express finding regarding performance.

Rather, the court focused on whether there was any prejudice, that is,

whether the additional evidence would have mattered.

4 Campbell was, according to the habeas court, a ‘‘friend’’ of the petitioner

who helped him with applications for assistance and ‘‘getting to

appointments.’’

5 The respondent argues for affirmance on the alternative ground that

neither Fernando nor Gonzalez testified at the habeas trial that he would

have testified at the criminal trial. There was testimony at the habeas trial

that Fernando was in a residential drug treatment program and Gonzalez

was incarcerated at the time of the petitioner’s criminal trial. Testimony at

trial may have implicated them in drug transactions, at a time when prosecution was not barred by a statute of limitations. The habeas court made no

findings in this regard, and we decline to address the argument.

6 The police asked the petitioner about a handgun, and the petitioner

replied that it was a can opener. A search of the Cedar Street building led

to the seizure of a paint can opener. No gun was ever found. State v. Ayala,

supra, 133 Conn. App. 516 n.2.

7 The habeas court found that the petitioner agreed with the testimony

of Terry Weaver, that he did not have a key to the apartment.

8 The habeas court noted that even if the petitioner had been renting a

room from the Weavers on the evening of November 4, 2007, his entrance

into the Weavers’ bedroom would not have been lawful.

General Statutes § 53a-100 (a) provides in relevant part: ‘‘The following

definitions are applicable to this part: (1) ‘Building’ . . . . [w]here a building

consists of separate units, such as, but not limited to separate apartments,

offices or rented rooms, any unit not occupied by the actor is, in addition

to being a part of such building, a separate building . . . .’’

According to the Weavers, the petitioner had searched their bedroom in

his search for Lozada, and there was no evidence that he was authorized

to enter that room.

9 The habeas court also noted that it disbelieved the petitioner’s version

of events, which included the two uneventful visits to the Weavers’ apartment

the night of November 4, 2007, but the petitioner failed to explain why

the Weavers would concoct their story, why he attempted to disguise his

appearance immediately before his arrest, why he gave a false name and

birth date, and why he lied to the police.