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ARNALDO SAEZ v. COMMISSIONER OF

CORRECTION

(AC 37451)

Beach, Mullins and Mihalakos, Js.

Argued May 10—officially released September 13, 2016

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

James E. Mortimer, with whom, on the brief, was

Michael D. Day, for the appellant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Gail P. Hardy, state’s attorney, and

Lisamaria T. Proscino, special deputy assistant state’s

attorney, for the appellee (respondent).
Opinion

BEACH, J. Following the habeas court’s denial of

his amended petition for a writ of habeas corpus, the

petitioner, Arnaldo Saez, appeals from the judgment of

the court denying his petition for certification to appeal.

On appeal, the petitioner claims that the court abused

its discretion by denying his petition for certification

to appeal on the following grounds: (1) his trial counsel

rendered ineffective assistance in the presentation of

the petitioner’s self-defense claim; and (2) the habeas

court improperly prohibited the petitioner from testifying that he was the victim of attacks prior to committing the homicide of which he was convicted. We

conclude that the court did not abuse its discretion in

denying the petition for certification to appeal, and,

accordingly, we dismiss the appeal.

The record reveals the following relevant factual and

procedural history. At the petitioner’s criminal trial, the

state presented evidence that in the early morning of

July 3, 1994, the petitioner had been a passenger in a

van traveling on Benton Street in Hartford. Upon seeing

the victim, Lazaro Rodriguez, and Janette Reyes, a

friend of both the petitioner and the victim, walking

along the street, the petitioner yelled out, ‘‘Who own

the street?’’ Reyes assumed the petitioner was joking

and responded that she did. The petitioner asked the

question again, but this time he directed it to the victim.

The victim replied, ‘‘What do you mean?’’ The victim

approached the van, and according to Reyes, the petitioner punched the victim in the face. The victim

punched the petitioner back.

During the ensuing fight between the victim and the

petitioner, the petitioner withdrew a knife from his

pocket and stabbed the victim. The victim raised his

arm to protect himself and jumped backward to get

away from the petitioner. After continuing to stab him

in the chest area, the petitioner told the victim, ‘‘You

dead man. You dead.’’ The petitioner got back into the

van and left the scene. The victim died.

The petitioner fled to New York and ultimately was

apprehended in California two months later. As he

awaited trial, the petitioner informed his cellmate that

on the night of the murder he had been at a bar and

was ‘‘looking to get out and take someone out.’’ He told

the cellmate that he had thought he was losing the

fight when he took out his knife and began stabbing

the victim.

On February 5, 1997, following a trial before a three

judge panel, the petitioner was convicted of one count

of murder in violation of General Statutes § 53a-54a.

He thereafter was sentenced to fifty years incarceration.

The petitioner filed an appeal from his conviction,

but he did not pursue the appeal and it was dismissed

after his appointed appellate counsel was granted per-
mission to withdraw pursuant to Anders v. California,

386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)

(establishing procedure by which appointed counsel

may withdraw from criminal appeal on ground of frivolousness). On July 18, 2014, the petitioner filed an

amended petition for a writ of habeas corpus, alleging

ineffective assistance of trial counsel. On October 30,

2014, in an oral decision, the habeas court denied the

petition. On November 12, 2014, the court denied the

petitioner’s petition for certification to appeal. The present appeal followed.

We begin by setting forth our standard of review

following the denial of certification to appeal from the

denial of a petition for a writ of habeas corpus. ‘‘Faced

with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review

of the dismissal of his petition for habeas corpus only

by satisfying the two-pronged test enunciated by our

Supreme Court in Simms v. Warden, 229 Conn. 178,

640 A.2d 601 (1994), and adopted in Simms v. Warden,

230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must

demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . To prove

an abuse of discretion, the petitioner must demonstrate

that the [resolution of the underlying claim involves

issues that] are debatable among jurists of reason; that

a court could resolve the issues [in a different manner];

orthatthe questions are adequate to deserve encouragement to proceed further. . . . Second, if the petitioner

can show an abuse of discretion, he must then prove

that the decision of the habeas court should be reversed

on the merits. . . . In determining whether there has

been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the

court’s ruling . . . [and] [r]eversal is required only

where an abuse of discretion is manifest or where injustice appears to have been done.’’ (Internal quotation

marks omitted.) Wilson v. Commissioner of Correction, 150 Conn. App. 53, 56–57, 90 A.3d 328, cert. denied,

312 Conn. 918, 94 A.3d 641 (2014).

‘‘Finally, we note that [t]he conclusions reached by

the [habeas] 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.’’

(Internal quotation marks omitted.) Misenti v. Commissioner of Correction, 165 Conn. App. 548, 559,

A.3d (2016).

I

The petitioner argues that the habeas court erred in

rejecting his claim that his trial counsel was ineffective

in the presentation of the petitioner’s claim of selfdefense by advising him not to testify and by failing to
offer photographic evidence tending to impeach a key

witness for the prosecution. We disagree.

‘‘In order to establish an ineffective assistance of

counsel claim a petitioner must meet the two-pronged

test enunciated in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, the claim must be supported by evidence establishing that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) counsel’s

deficient performance prejudiced the defense because

there was a reasonable probability that the outcome of

the proceedings would have been different had it not

been for the deficient performance. . . . Because both

prongs of Strickland must be demonstrated for the

petitioner to prevail, failure to prove either prong is

fatal to an ineffective assistance claim. . . . In a habeas

appeal, this court cannot disturb the underlying facts

found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by

the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Citation omitted; emphasis in original;

internal quotation marks omitted.) Atkins v. Commissioner of Correction, 158 Conn. App. 669, 675, 120 A.3d

513, cert. denied, 319 Conn. 932, 125 A.3d 206 (2015).

Specifically, the petitioner argues that trial counsel

was ineffective in the presentation of the petitioner’s

self-defense claim because he did not introduce certain

evidence, namely, testimony of the petitioner and photographic evidence of lighting conditions at the time of

the victim’s murder.

‘‘In order sufficiently to raise self-defense, a defendant must introduce evidence that the defendant reasonably believed his adversary’s unlawful violence to be

‘imminent’ or ‘immediate.’. . . [A] person can, under

appropriate circumstances, justifiably exercise

repeated deadly force if he reasonably believes both

that his attacker is using or is about to use deadly force

against him and that deadly force is necessary to repel

such attack.’’ (Citation omitted.) State v. Carter, 232

Conn. 537, 545–46, 656 A.2d 657 (1995). ‘‘A defendant

who acts as an initial aggressor is not entitled to the

protection of the defense of self-defense. . . . The initial aggressor is the person who first acts in such a

manner that creates a reasonable belief in another person’s mind that physical force is about to be used based

upon that other person.’’ (Citations omitted.) State v.

Skelly, 124 Conn. App. 161, 167–68, 3 A.3d 1064, cert.

denied, 299 Conn. 909, 10 A.3d 526 (2010).

A

The petitioner first argues that trial counsel should

have advised him to testify because such testimony

was the only way to establish that the petitioner: (1)

subjectively believed that, during his fight with the vic-
tim, the victim was using or about to use deadly force;

(2)reasonably believed that deadly force was necessary

under the circumstances; and (3) could not have

retreated with complete safety from the victim.

‘‘It is axiomatic that [i]t is the right of every criminal

defendant to testify on his own behalf . . . and to make

that decision after full consideration with trial counsel.

. . . [A]lthough the due process clause of the [f]ifth

[a]mendment may be understood to grant the accused

the right to testify, the if and when of whether the

accused will testify is primarily a matter of trial strategy

to be decided between the defendant and his attorney.’’

(Internal quotation marks omitted.) Coward v. Commissioner of Correction, 143 Conn. App. 789, 799, 70

A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).

‘‘[T]he presentation of testimonial evidence is a matter

of trial strategy. . . . The failure of defense counsel to

call a potential defense witness does not constitute

ineffective assistance unless there is some showing that

the testimony would have been helpful in establishing

the asserted defense.’’ (Internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn.

App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn.

943, 786 A.2d 428 (2001). ‘‘[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the

exercise of professional judgment . . . .’’ (Internal

quotation marks omitted.) Dunkley v. Commissioner

of Correction, 73 Conn. App. 819, 825, 810 A.2d 281

(2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).

‘‘[J]udicial scrutiny of counsel’s performance must

be highly deferential. It is all too tempting for a defendant 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. . . . A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’’ (Internal quotation marks

omitted.) Boyd v. Commissioner of Correction, 130

Conn. App. 291, 297, 21 A.3d 969, cert. denied, 302 Conn.

926, 28 A.3d 337 (2011).

The record reveals the following additional facts.

During the criminal trial, defense counsel introduced a

statement made by the petitioner to the Los Angeles

Police Department when he finally was apprehended.

The statement contained the petitioner’s account of

what had occurred on the morning of the murder, and

it generally was consistent with the self-defense theory

the petitioner presented at trial and supported the petitioner’s proposition that he had not been the initial

aggressor in the confrontation with the victim.1 The
statement does not include an express reference to the

petitioner’s state of mind during the confrontation with

the victim.2

The habeas court concluded that the evidence presented by the petitioner was ‘‘woefully lacking in trying

to prove any ineffective assistance . . . .’’ It further

rejected the petitioner’s claims, noting that ‘‘[t]he only

thing that could be potentially considered evidence that

wasn’t presented to the three judge panel, was the selfserving testimony presented by [the petitioner].’’ The

court expressly found that the petitioner’s testimony

was ‘‘less than fully believable’’ and that he ‘‘demonstrated evasiveness.’’ These credibility determinations

as well as other evidence in the record overcome the

petitioner’s assertion on appeal that his testimony at

trial ‘‘would have strongly supported his defense.’’

At the habeas trial, the petitioner’s trial counsel testified that he had had several tacticalreasons for advising

the petitioner not to testify on his own behalf: (1) the

petitioner would have come ‘‘across as a street hustler’’

to the jury, (2) the petitioner’s statement to the Los

Angeles Police Department had been admitted into evidence, and (3) there would be ‘‘some impeachment as

to [the petitioner’s] record’’ regarding the petitioner’s

gang involvement. Nevertheless, the petitioner argues

that counsel should have advised him to testify. The

petitioner claims that he would have testified as to

relevant subjects not addressed in the statement he

had made to the Los Angeles Police Department. The

subjects include his subjective belief that the victim

was about to use deadly force, that this belief was

objectively reasonable, that he had not been the initial

aggressor, and that he had been unable to retreat. See

General Statutes § 53a-19 (b) (1) (individual is not entitled to use deadly physical force if he can avoid using

such force with complete safety by retreating). This

testimony, the petitioner reasons, was necessary to

establish a viable self-defense claim.

On our review of the record, we conclude that the

habeas court properly determined that trial counsel’s

performance fell within the range of reasonable professional assistance. The petitioner failed to overcome the

presumption that counsel’s strategic decision to advise

the petitioner not to testify was reasonable and the

result of counsel’s professional judgment. Moreover, at

his criminal trial, the petitioner was thoroughly canvassed by the court about his right to testify, and the

petitioner does not now claim otherwise or that his

waiver was not intelligently or voluntarily made. The

circumstances of this case appear to present a classic

example of second-guessing trial counsel’s performance after it has proved unsuccessful. See Boyd v.

Commissioner of Correction, supra, 130 Conn. App.

297. Accordingly, counsel’s decision to advise the petitioner not to testify constituted reasonable profes-
sional judgment.

B

The petitioner next argues that counsel should have

sought to introduce photographic evidence depicting

the crime scene with lighting conditions similarto those

present in the early morning when the fight began. Such

photographs, the petitioner asserts, ‘‘would have

impeached the testimony of [Reyes]’’ as it pertained to

the petitioner acting as the initial aggressor.

At the petitioner’s criminal trial, photographs that

depicted the crime scene during daylight hours were

introduced into evidence. At the habeas trial, the petitioner introduced photographs that depicted the crime

scene in dark early morning conditions. He claims that

a comparison of the photographs introduced at the

criminal trial and the photographs introduced at the

habeas trialreveals thatthe lighting conditions shown in

the latter would impair a witness’ ability to ‘‘accurately

perceive anything visually.’’ Had trial counsel submitted

the photographs depicting the poor lighting conditions,

the petitioner argues, Reyes’ testimony about the petitioner initiating the altercation with the victim would

have been called into question; without any such photographs, the trial judges had to speculate as to Reyes’

ability to perceive events.

In its memorandum of decision following the habeas

trial, the court described the evidence presented by the

petitioner to prove trial counsel’s ineffective assistance

as ‘‘woefully lacking.’’ It added that, ‘‘[a]s far as any

new evidence that would undermine the confidence [in]

the conviction, it is next to nothing,’’ and ‘‘[t]he court

hasn’t [seen anything] . . . that would in any way allow

[it] to conclude that [trial counsel] did anything other

than properly investigate this matter.’’

The record reveals that trial counsel thoroughly

cross-examined Reyes with respect to the lighting at

the time of the murder, her vantage point, and her

general ability to observe the petitioner and the victim

as they fought. The petitioner asserted that he had not

been able to overcome the presumption that he was the

initial aggressor because trial counsel did not impeach

Reyes with photographs; yet, it is not clear how the

introduction of the early morning photographs would

have impeached Reyes’ testimony,3 and the petitioner

has made no claim that the cross-examination itself

was otherwise deficient. Counsel’s strategic decision

to challenge Reyes’ ability to see the altercation through

cross-examination—as opposed to introducing photographic evidence of the lighting conditions—was an

exercise of sound professional judgment.

The petitioner has failed to satisfy the performance

prong of Strickland; see Strickland v. Washington,

supra, 466 U.S. 687–91; therefore, the habeas court did

not err in concluding that trial counsel did not provide
the petitioner with ineffective assistance at his criminal trial.4

II

We next consider the petitioner’s claim that the

habeas court abused its discretion in its evidentiary

rulings at the habeas trial. The court precluded the

petitioner’s testimony as to certain attacks on him in

the period of time prior to his stabbing the victim. He

argues that this evidence ‘‘would have been offered to

prove that the petitioner had a subjective fear for his

life during [the fight with the victim] and that his fear

was objectively reasonable. Ultimately, such evidence

would have been used to prove that trial counsel was

ineffective for failing to elicit such evidence to prove

that the petitioner was entitled to a claim of selfdefense.’’ We conclude that any error resulting from

the exclusion of this evidence was harmless.

The standard of review for evidentiary claims is well

established. ‘‘Unless an evidentiary ruling involves a

clear misconception of the law, the [habeas] court has

broad discretion in ruling on the admissibility . . . of

evidence. . . . The [habeas] court’s ruling on evidentiary matters will be overturned only upon a showing

of a clear abuse of the court’s discretion. . . . We will

make every reasonable presumption in favor of upholding the [habeas] court’s ruling . . . .’’ (Internal quotation marks omitted.) Crawford v. Commissioner of

Correction, 285 Conn. 585, 602–603, 940 A.2d 789 (2008).

‘‘Evidence is relevant if it has any tendency to make

the existence of any fact that is material to the determination of the proceeding more probable orless probable

than it would be without the evidence.’’ (Internal quotation marks omitted.) Gibson v. Commissioner of Correction, 135 Conn. App. 139, 152, 41 A.3d 700, cert.

denied, 305 Conn. 922, 47 A.3d 881 (2012).

At the habeas trial, the petitioner attempted to offer

testimony that he had been attacked previously within

the three months preceding his fight with the victim on

July 3, 1994. Members of the Latin Kings, a gang, allegedly shot at the petitioner on April 15, 1994, and two

of the petitioner’s acquaintances allegedly attacked him

with a knife at a bar on June 24, 1994. The court sustained two objections made by the respondent, the

Commissioner of Correction, on the ground of relevancy. The petitioner submitted an offer of proof the

following day; the court noted its filing, but it did not

comment on it further. The petitioner posits that his

testimony about the prior attacks would have been relevant to a finding of subjective fear and the reasonableness of the fear at the criminal trial, and, thus, the

evidence was relevant to his substantive claim at the

habeas trial that counsel was ineffective by advising

him not to testify. Had he testified about the prior

assaults, the petitioner reasoned, the tribunal would

have heard additional facts tending to support his claim
of self-defense.

It is unclear from the record whether the circumstances of the prior attacks had any similarity to the

circumstances of the confrontation between the petitioner and the victim; if the circumstances of the prior

attacks were entirely different from the circumstances

of the fight in this case, it is possible that the prior

attacks might not have been relevant to the petitioner’s

underlying self-defense claim. If it is assumed, however,

that the circumstances were similar enough so that the

testimony of the prior attacks was relevant to the selfdefense claim, and it is further assumed that trial counsel knew or should have known of these prior assaults,

then it is conceivable that the petitioner’s testimony

about these attacks would have been relevant to the

petitioner’s claim that counsel provided ineffective

assistance.

Nevertheless, the preclusion of this testimony from

the habeas trial was harmless in any event because, for

the reasons we stated in part I of this opinion, trial

counsel’s overall trial strategy—even in light of the petitioner’s allegations of the prior attacks—constituted

reasonable professional judgment. Counsel testified at

the habeas trial that, among other reasons, he had

advised the petitioner not to testify because his testimony would suggest possible gang involvement. The

introduction of any evidence about an attack on the

petitioner by a gang, then, would have been inconsistent

with that strategy, in that it would at the very least

raise the specter of gang involvement. Moreover, the

evidence of the prior attacks, though perhaps marginally relevant to the self-defense claim, likely would not

have changed the outcome of the criminal trial. Beyond

having the potential to support the proposition that the

petitioner generally may have been fearful, there is no

indication that evidence about prior attacks had any

correlation to the petitioner’s specific self-defense

claim as it pertained to the victim and to the fight in

this case. For these reasons, the preclusion of the petitioner’s testimony at the habeas trial could not reasonably have affected the conclusion of the habeas court

that counsel provided effective assistance at the petitioner’s criminal trial; therefore, the preclusion of the

testimony was at most harmless.

In light of the foregoing, we conclude that the habeas

court properly denied the petition for certification to

appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitioner’s statement provided in relevant part: ‘‘Suddenly, [the

victim] approached the van and began to strike me in the face with his fists.

He hit me several times through the open window. I managed to open the

van door and stepped out of the vehicle. [The victim] continued to attack

me with his fists. He never let up. I was feeling the [effects] of the blows.

I removed a pocket knife from my right jeans pocket. It had a three inch

blade. I kept it in . . . my jeans. I managed to open the blade as I crouched
alongside the van trying to move away from him. I had the knife in my left

hand and struck my left hand out toward [the victim] to stop the attack on

me. I don’t know if I struck him or not. I may have. I made repeated attempts

to stab him. He beat me until we reached the back of the van. Then he

backed away a couple of feet and was bouncing like a boxer. I did not see

any blood on him. I had blood on my [shirt] but I thought it was mine. . . .

I got into the van and the guy drove off.’’

2

It is arguable that elements of intent could be inferred from the statement

the petitioner made to the Los Angeles Police Department.

3

In fact, the photographs may have supported Reyes’ testimony. Reyes

testified that when she observed the fight between the petitioner and the

victim, it had been nighttime, and it was very dark. She also testified that

the only lighting came from a single streetlight. The photographs, which show

the crime scene at nighttime, then, are consistent with Reyes’ testimony.

4 We need not address the petitioner’s claim that prejudice resulted from

counsel’s performance. See Atkins v. Commissioner of Correction, supra,

158 Conn. App. 675 (‘‘[b]ecause both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to

an ineffective assistance claim’’ [internal quotation marks omitted]).