LUIS DIAZ v. COMMISSIONER OF CORRECTION

(AC 39134)

Lavine, Keller and Pellegrino, Js.

Syllabus

The petitioner, who had been convicted of murder and firearm offenses in

connection with a shooting incident in Bridgeport, sought a writ of

habeas corpus, claiming, inter alia, that the habeas court abused its

discretion in denying his petition for certification to appeal because his

right to due process and a fair trial were violated by the prosecutor’s

failure to disclose material evidence that was favorable to the defense

as required by Brady v. Maryland (373 U.S. 83). During the petitioner’s

criminal trial, several witnesses, including O, gave testimony implicating

the petitioner in the shooting. Specifically, O, who was incarcerated at

the time of the petitioner’s trial, testified that he had observed the

petitioner shoot the victim. The habeas courtrendered judgment denying

the petition. Thereafter, the court denied the petition for certification

to appeal, and the petitioner appealed to this court. Held:

1. The petitioner failed to demonstrate that the habeas court abused its

discretion in denying the petition for certification to appeal with respect

to the petitioner’s claim that his right to due process and a fair trial

were violated by the prosecutor’s failure to disclose material evidence

that was favorable to the defense, namely, that an express or implied

agreement existed between the state and O, in exchange for O’s testimony at the petitioner’s criminal trial; the petitioner’s claim to the

contrary notwithstanding, the habeas court focused on the claim as

framed by the petitioner’s amended petition, and did not limit its analysis

to the existence of a written or formal agreement between the state

and O, or the existence of a plea agreement, as the court referred

to the lack of any ‘‘undisclosed understandings’’ or ‘‘clandestine plea

arrangements,’’ and the fact that ‘‘no deals were struck’’ between the

state and O, and the circumstantial evidence, including the fact that,

several months after O testified for the state at the petitioner’s criminal

trial, the state agreed that O’s sentence modification agreement should

be considered by the sentencing court, did not compel a finding that,

prior to the petitioner’s criminal trial, the state and O had come to

an understanding that required disclosure under Brady, because the

testimony of both S, the senior assistant state’s attorney who prosecuted

the petitioner in his underlying criminal trial, and O was consistent in

their denial that, prior to the petitioner’s trial, any agreement had been

reached or that any quid pro quo existed other than that which was

disclosed to the jury at the petitioner’s criminal trial, namely, that O

hoped that the state would make O’s cooperation known in the future;

moreover, any evidence that S was motivated to acquiesce in O’s sentence modification application following the petitioner’s trial did not

implicate a duty to disclose under Brady at the time of trial; furthermore,

this court did not consider the petitioner’s alternative claims that the

state solicited O’s false testimony that no agreement had made with the

state and that the state failed to correct that false testimony because

those claims were not distinctly raised before the habeas court and the

court did not consider those claims in denying the petition for a writ

of habeas corpus.

2. The petitioner failed to demonstrate that the habeas court abused its

discretion in denying the petition for certification to appeal with respect

to the petitioner’s claim that counsel in the prior habeas proceeding

rendered ineffective assistance because they failed to identify, understand, research, raise, or argue the Brady claim concerning O: even if

the petitioner could demonstrate that counsel performed deficiently

with respect to the Brady claim concerning O, the habeas court properly

determined that the petitioner was unable to demonstrate that he was

prejudiced by counsel’s performance because no Brady violation

occurred.

Argued March 7—officially released July 18, 2017
(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland, and tried to the court, Sferrazza, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

James E. Mortimer, for the appellant (petitioner).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, was John Smriga, state’s attorney,

and Craig Nowak, senior assistant state’s attorney, for

the appellee (respondent).
Opinion

KELLER, J. The petitioner, Luis Diaz, appeals following the denial of his petition for certification to appeal

from the judgment of the habeas court denying his

amended petition for a writ of habeas corpus. First, the

petitioner claims that the court abused its discretion

in denying his petition for certification to appeal

because his right to due process and a fair trial were

violated by the prosecutor’s failure to disclose material

evidence that was favorable to the defense, namely,

that an express or implied agreement existed between

the state and one of the state’s witnesses, Eddie Ortiz,

in exchange for Ortiz’ testimony at the petitioner’s criminal trial. In connection with this claim, the petitioner

also claims that the state failed to correct false testimony provided by Ortiz concerning the existence of

such an agreement. Second, the petitioner claims that

his right to the effective assistance of counsel was violated by virtue of representation afforded to him by

counsel in a prior habeas proceeding. The petitioner

claims that prior habeas counsel failed to adequately

pursue his claim that his right to due process was violated by the state’s failure to disclose an agreement

reached with Ortiz prior to the petitioner’s trial.

Because we conclude that the court’s denial of the

petition for certification to appeal reflected a proper

exercise of its discretion, we dismiss the appeal.

The following underlying facts and procedural history

are relevant to the present appeal. In 2007, following a

jury trial, the petitioner was convicted of murder in

violation of General Statutes § 53a-54a, carrying a pistol

without a permit in violation of General Statutes § 29-

35, and criminal possession of a pistol in violation of

General Statutes § 53a-217c. The petitioner was sentenced to a total effective term of incarceration of seventy years. Following the petitioner’s direct appeal to

our Supreme Court pursuant to General Statutes § 51-

199 (b) (3), that court affirmed the judgment of conviction. State v. Diaz, 302 Conn. 93, 25 A.3d 594 (2011).

Our Supreme Court set forth the following facts

underlying the petitioner’s conviction: ‘‘On the evening

of January 11, 2006, the victim, Philip Tate, was shot

and killed outside a bar known as the Side Effect West

in the city of Bridgeport. Thereafter, the [petitioner]

was arrested and charged with murdering the victim,

carrying a pistol without a permit and criminal possession of a pistol or revolver.

‘‘In March, 2006, Corey McIntosh gave a statement

to the police indicating that the [petitioner] had been

the shooter. At that time, McIntosh was on federal probation and had received a three year suspended sentence for possessing narcotics in Connecticut. McIntosh

testified at the [petitioner’s] trial that he had seen the

[petitioner] outside the Side Effect West immediately
before the shooting and had heard shots as he entered

the bar. He then ran out the back door and saw the

[petitioner] running down the street with a gun in his

hand. Additional state narcotics charges were pending

against McIntosh at the time of trial. He testified that,

while no promises had been made in connection with

the pending charges, he was hoping to receive some

consideration in exchange for his testimony.

‘‘At some point after July, 2006, Eddie Ortiz wrote a

letter to the prosecutor’s office indicating that he had

information about the murder. He was incarcerated at

the time and stated in his letter that he was looking for

some consideration in exchange for his testimony. Ortiz

testified at the [petitioner’s] trial that he had seen the

[petitioner] shoot the victim. He also testified that, during the trial, he had been placed in the same holding

cell as the [petitioner], who said to him, ‘You know

what I did’ and ‘I know where you live at.’ In addition,

Ortiz testified that the [petitioner] had offered him

$5000 notto testify. He furthertestified thatthe prosecutor’s office had not promised him anything in exchange

for his testimony and that he had been told that it would

be up to a judge whether he would receive any benefit,

such as a sentence modification. He had expectations,

however, that his testimony would be taken into consideration.

‘‘Approximately six months after the murder, James

Jefferson asked his attorney to inform Harold Dimbo,

a detective with the Bridgeport [P]olice [D]epartment,

that Jefferson had information about the murder. Jefferson, who was incarcerated in Connecticut on domestic

violence charges at the time, was subject to lifetime

parole in New York in connection with a conviction on

narcotics charges in that state. Dimbo visited Jefferson

in prison and Jefferson agreed to give a statement about

the shooting. Dimbo made no promises to Jefferson. In

September, 2006, the domestic violence charges were

dismissed for lack of evidence. Thereafter, Jefferson

testified at the [petitioner’s] trial that he had seen the

[petitioner] and the victim outside Side Effect West

immediately before the shooting. He also saw the [petitioner] shoot at someone, but he did not see the victim

at that point. At the time of trial, Jefferson was incarcerated in Connecticut for violating his parole in New York.

‘‘McIntosh, Ortiz and Jefferson were the only witnesses who identified or implicated the [petitioner] as

the shooter. The [petitioner’s] girlfriend, Shenisha

McPhearson, testified that the [petitioner] had been

with her at her apartment at the time of the shooting.

The state presented no physical evidence to tie the

[petitioner] to the shooting and the gun used in the

shooting was never recovered.’’ (Footnote omitted.)

Id., 95–97.

In a prior habeas corpus proceeding, in which the

petitioner was represented by Attorneys William T.
Koch, Jr., and W. Theodore Koch III, the habeas court

denied the petitioner relief on May 16, 2012. After the

habeas court denied the petitioner’s petition for certification to appeal from that judgment, the petitioner

appealed to this court, which dismissed the appeal.

Diaz v. Commissioner of Correction, 152 Conn. App.

669, 100 A.3d 856, cert. denied, 314 Conn. 937, 102 A.3d

1114 (2014).

In the present action, on June 7, 2013, the petitioner

filed a petition for a writ of habeas corpus. On February

9, 2015, the petitioner filed a three count amended petition. In count one, he alleged that prior habeas counsel

rendered ineffective assistance in ten different ways.

In count two, the petitioner alleged that his right to due

process was violated because the prosecutor failed to

disclose evidence that was favorable to the defense

‘‘with respect to an express or implied agreement’’ with

state’s witnesses Ortiz, McIntosh, and Jefferson. In

count three, the petitioner, referring to evidence that

he alleged to have discovered following his conviction,

claimed that he was actually innocent of the charges

underlying his conviction and incarceration. During the

trial, the petitioner withdrew the third count of the

petition.

In his return, the respondent, the Commissioner of

Correction, denied the substantive allegations set forth

in each count of the petition. By way of special defenses,

the respondent alleged that the claims set forth in count

two were barred by the doctrines of successive petition

and abuse of the writ because the claims either were

previously litigated in the prior habeas proceeding or

the petitioner had a full and fair opportunity to litigate

such claims in that prior proceeding. Alternatively, the

respondent alleged that the claims set forth in count

two were barred by the doctrine of procedural default

because the petitioner failed to raise such claims in the

prior habeas proceeding. In reply, the petitioner denied

the respondent’s special defenses.

A trial before the habeas court took place on August

18, 2015, and October 22, 2015. In addition to receiving

evidence that was nontestimonial in nature, the court

heard testimony from Donald Collimore, an assistant

state’s attorney who prosecuted charges against McIntosh, beginning in 2006; Brian Kennedy, an assistant

state’s attorney who, at Collimore’s direction, entered a

nolle prosequi in McIntosh’s prosecution; W. Theodore

Koch III, who represented the petitioner in his prior

habeas appeal; Howard Stein, a senior assistant state’s

attorney who prosecuted the petitioner in the criminal

case underlying the present action; Ortiz; and Jefferson.

Later, the petitioner and the respondent submitted posttrial briefs to the court.

In its memorandum of decision denying the amended

petition, the court stated: ‘‘In the present action, the

petitioner alleges, in the first count, that his previous
habeas counsel . . . rendered ineffective assistance

and, in the second count, that his due process rights

as enunciated in Brady v. Maryland, [373 U.S. 83, 87,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], were breached.’’

First, the court addressed the merits of the petitioner’s Brady claim. In relevant part, the court stated: ‘‘The

petitioner asserts that three prosecution witnesses, viz.

. . . Ortiz . . . McIntosh, and . . . Jefferson, were

offered secret plea dispositions regarding their own

criminal files in exchange for their testimony against

the petitioner at his criminal trial in 2007. During the

present habeas hearing . . . Collimore . . . Kennedy

. . . Stein . . . Ortiz . . . and . . . Jefferson . . .

all testified that no such undisclosed understandings

existed at the time their cases and the petitioner’s criminal case were pending. [Koch] . . . also testified that

he discovered no evidence supporting such clandestine

plea arrangements when he represented the petitioner

in his previous habeas case. No credible evidence was

adduced during the present hearing to support these

assertions of Brady violations nor attacking the credibility of the above listed witness’ testimony to the

contrary.

‘‘Although certain favorable plea negotiations

occurred with respect to Ortiz, McIntosh, and Jefferson

sometime after the petitioner’s criminal trial concluded,

the court finds that no deals were struck between any

of these witnesses and the prosecution in exchange

for their testimony [at the petitioner’s criminal trial].

Indeed, because Jefferson and McIntosh had given written statements to the police implicating the petitioner as

the shooter shortly after the homicide, the prosecutor

handling the petitioner’s case had no pressing need

to proffer promises to these witnesses because of the

holding of State v. Whelan, 200 Conn. 743, 753 [513 A.2d

86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed.

2d 598] (1986).

‘‘Therefore, the court determines that the petitioner

has failed to prove the factual underpinnings of his

Brady violation claim, and the court denies the

amended petition as to the second count.’’ (Emphasis

in original.)

Discussing the merits of the first count of the petition,

alleging ineffective assistance of prior habeas counsel,

the court began its analysis by setting forth relevant

principles of law. The court observed that the petitioner

had ‘‘a herculean task’’ of demonstrating that he was

prejudiced by the deficient performance of prior habeas

counsel and trial counsel. (Internal quotation marks

omitted.) Then, the court stated: ‘‘[T]he petitioner avers

that his previous habeas counsel were professionally

deficient by failing to discover and present evidence,

in a variety of forms, as to the existence of implied plea

agreements between the state and Ortiz, McIntosh, and

Jefferson; by misadvising the petitioner with respect to
the availability of sentence review; by failing to assert

an ineffective assistance claim against appellate counsel . . . for her failure to lay a proper foundation for

a Brady violation argument through rectification of the

trial records; and by failing to present expert witnesses

regarding the purported insufficiencies of trial and

appellate counsel. . . .

‘‘This court’s factual findings that no Brady violation

occurred, as elucidated above, also requires the court to

deny habeas relief with respect to ineffective assistance

premised on the existence of such violations. . . .

‘‘Per stipulation between the litigants, the petitioner’s

opportunity for sentence review was restored. Therefore, this claim of ineffective assistance has been dealt

with previously. . . .

‘‘The final specification against habeas counsel is that

they failed to engage legal experts to evaluate and testify

as to the deficient performance of trial and/or appellate

counsel. However, in this present habeas case, the petitioner also presented no such expert witnesses with

respect to trial counsel, appellate counsel, or previous

habeas counsel. Consequently, this averment lacks any

factual foundation whatsoever. [This] court would be

left to speculate as to whether such expert testimony

would have been available [to prior trial, appellate, and

habeas counsel], and as to the substance of such supposed testimony. It is incumbent upon the petitioner

to establish the ways in which defense counsel’s failure

to present a witness negatively affected the pertinent

proceeding . . . . Therefore, this allegation of ineffective assistance fails.’’ (Citation omitted; emphasis in

original.) Subsequent to its denial of the petition for a

writ of habeas corpus,1

the court denied a petition for

certification to appeal filed by the petitioner.

‘‘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. . . .

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. . . .

‘‘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]; or that the questions are adequate to

deserve encouragement to proceed further. . . . In

determining whetherthe habeas court abused its discretion in denying the petitioner’s request for certification,
we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas

court reasonably determined that the petitioner’s

appeal was frivolous.’’ (Citation omitted; internal quotation marks omitted.) James v. Commissioner of Correction, 170 Conn. App. 800, 807–808, 156 A.3d 89 (2017).

In evaluating the merits of the underlying claims on

which the petitioner relies in the present appeal, we

observe that ‘‘[when] the legal conclusions of the court

are challenged, [the reviewing court] must determine

whether they are legally and logically correct . . . and

whether they find support in the facts that appear in

the record. . . . To the extent that factual findings are

challenged, this court cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous . . . . [A] finding of fact is clearly erroneous

when there is no evidence in the record to support it

. . . or when although there is evidence to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.)

Brewer v. Commissioner of Correction, 162 Conn. App.

8, 13, 130 A.3d 882 (2015).

I

First, the petitioner claims that the court abused its

discretion in denying his petition for certification to

appeal because his right to due process and a fair trial

were violated by the prosecutor’s failure to disclose

material evidence that was favorable to the defense,

namely, that an express or implied agreement existed

between the state and Ortiz in exchange for Ortiz’ testimony at the petitioner’s criminal trial. In connection

with this claim, the petitioner also claims that the state

failed to correct false testimony provided by Ortiz concerning the existence of such an agreement. We disagree that the court abused its discretion in denying

the petition for certification to appeal on this ground.

As stated previously in this opinion, the petitioner

alleged that, at his criminal trial, the state violated

Brady in that it ‘‘failed to disclose material favorable

evidence to the petitioner with respect to an express

or implied agreement with the state’s witness . . .

Ortiz.’’ In support of this aspect of his claim, the petitioner alleged the following specific facts: (1) ‘‘[o]n July

12, 2006 . . . Ortiz was convicted of robbery in the

first degree and sentenced to eight years [of] incarceration’’; (2) ‘‘[a]t the petitioner’s criminal trial . . . Ortiz

testified that he witnessed the petitioner murder . . .

Tate and that the petitioner had attempted to bribe him

not to testify’’; (3) ‘‘[a]fter testifying at the petitioner’s

criminal trial . . . Ortiz’ sentence was modified to

three years’’;(4)‘‘Ortiz testified at the petitioner’s criminal trial that he was promised no consideration. Furthermore . . . Stein stated in the state’s closing

argument that . . . Ortiz was told that he would get
no benefit in exchange for his testimony’’; and (5)

‘‘[w]hen . . . Ortiz testified at the petitioner’s criminal

trial, an undisclosed express or implied agreement that

the state would concur with his sentence modification

application in exchange for his favorable testimony

existed, in violation of the petitioner’s constitutional

rights.’’

As detailed previously in this opinion, the court

rejected the petitioner’s assertion that any ‘‘clandestine

plea arrangement’’ or ‘‘undisclosed understandings’’

existed between the state and the witnesses at issue in

the petition, including Ortiz, at the time that the cases

of the petitioner and Ortiz were pending. The court

found that ‘‘[n]o credible evidence was adduced during

the present hearing to support . . . assertions of

Brady violations . . . .’’ The court found that ‘‘no deals

were struck’’ between the witnesses at issue, including

Ortiz, and the prosecution in exchange for their testimony.

The petitioner argues that ‘‘the habeas court entirely

misunderstood the nature of the petitioner’s claim concerning Ortiz. . . . The petitioner did not assert that

Ortiz was offered secret plea dispositions regarding

[Ortiz’] own criminal file in exchange for[his] testimony

. . . . Rather, the gravamen of the petitioner’s complaint, as advanced through his pleadings, his pretrial

brief, through the questioning of witnesses, his posttrial

brief, and now on appeal, is that the prosecuting authority explicitly or implicitly promised Ortiz consideration,

in the form of a promise of acquiescence to a sentence

modification application, prior to his testimony. Further, the petitioner argued that the prosecuting authority’s advancement of Ortiz’ testimony concerning the

same was false and misleading and stood uncorrected.’’

(Citations omitted; internal quotation marks omitted.)

The petitioner argues that the evidence presented at

the habeas trial ‘‘demonstrated [that] the state extended

a pretestimonial offer of consideration to Ortiz for a

more favorable outcome in his criminal case in

exchange for his testimony at the petitioner’s criminal

trial. The agreement the petitionerfinds fault with arose

by virtue of the state’s implied promise of acquiescence

to Ortiz’ sentence modification application.’’ (Emphasis in original.)

The petitioner draws our attention to Ortiz’ testimony

during the habeas trial that when he wrote to the prosecutor’s office in 2006, after he received an eight year

sentence of incarceration forrobbery in the first degree,

he hoped that by coming forward to testify against the

petitioner he could ‘‘get out early.’’2 Ortiz testified that,

when he met with Stein prior to testifying, a topic of

conversation was how his sentence could be changed,

and that he learned that the only person that could

change his sentence was a judge. Ortiz testified, however, that ‘‘there was nothing promised.’’ Ortiz testified
that Stein told him that he would be willing to make

his participation in the petitioner’s criminal trial known,

but that Stein did not specify to whom he would make

it known. Ortiz testified, as well, that, after he testified

against the petitioner, he contacted a public defender,

Attorney Joseph Bruckmann, for assistance because he

was ‘‘being threatened’’ in jail. He testified that, ultimately, his sentence was reduced by five years.

The petitioner also draws our attention to Stein’s

testimony. Stein testified that when he met with Ortiz

initially, Ortiz requested consideration for his testimony. Stein testified, however, that the state did not

offer Ortiz any consideration in exchange for his testimony. Stein testified: ‘‘[Ortiz] was not a necessary witness and . . . I explained to him that there would be

no consideration. I did explain to him that if he did

testify, if he did the right thing, that if he felt that that

had value in the future somehow and he wanted me to

affirm that to somebody, whoever that might be, that

I would be happy to do that, to affirm the fact that

he testified, but that there was no consideration, no

accommodation to sentence, just that I would state the

affirmative, that he testified as a state’s witness in a

homicide case.’’ Stein acknowledged that ‘‘there are

many ways for a state’s attorney to acknowledge a

person’s cooperation,’’ and that these ways did not necessarily relate to sentence modification. Stein testified

that ‘‘[s]entence modifications were not discussed,’’ but

he told Ortiz that he would be willing to make a formal

acknowledgement of Ortiz’ cooperation with the state

to any party, including a judge. Stein testified that, after

he spoke with Ortiz, he believed that he would be an

effective witness for the state.

In attempting to demonstrate the existence of an

agreement concerning Ortiz’ application for sentence

modification, the petitioner refers to Stein’s testimony

that, in fact, he was aware that Ortiz, who had been

sentenced to a term of incarceration of more than three

years, could not have such application considered by

the court without the approval of the state’s attorney.

See General Statutes § 53a-39 (b).3 Yet, Stein testified

that he did not represent to Ortiz that he would agree

to support a sentence review application if Ortiz sought

to pursue such a remedy. Stein testified that following

Ortiz’ testimony, on August 9, 2007, he ‘‘signed off’’ on

a sentence review application that was filed on Ortiz’

behalf. Stein testified that his decision regarding the

application was made only after he had learned that

Ortiz was being threatened in jail by the petitioner and

others on behalf of the petitioner, and that Ortiz had

sought the assistance of Bruckmann. Stein testified that

Bruckmann related that information to him and filed

the application on Ortiz’ behalf. Stein testified that,

subsequently, he received a letter from Ortiz, which

was admitted in evidence, in which Ortiz thanked him

for keeping his ‘‘promise.’’ Stein testified that it was
only after he learned from Bruckmann that Ortiz’ life

was in danger as a consequence of his testimony against

the petitioner that he indicated to Bruckmann that he

would concur in the sentence modification application

so that Ortiz could appear before the court. Stein testified that, in referring to a promise, Ortiz may have

been referring to what Stein told him during his initial

meeting with him, when he informed Ortiz that he would

acknowledge the fact that he had testified against the

petitioner on behalf of the state.4 Stein testified as to

his belief that Ortiz’ letter was not evidence that any

type of deal had been made with him to secure his testimony.

The evidence was undisputed that Ortiz testified

against the petitioner in April of 2007. Transcripts from

the petitioner’s criminal trial, admitted in evidence,

reflect that, during his direct examination by Stein for

the state, Ortiz testified that the topic of sentence modification had not been discussed with him previously

and that ‘‘no promises’’ were made to him in exchange

for his testimony. With respect to Ortiz’ expectations,

the following relevant examination of Ortiz by Stein

transpired at the petitioner’s criminal trial:

‘‘Q. So basically you were told that . . . it’s expected

you would cooperate. And what, if anything, came from

it was up to a judge one day to decide if it had any value?

‘‘A. Yes, sir.

‘‘Q. And you were promised nothing?

‘‘A. Yes, sir.

‘‘Q. Certainly, do you have expectations or would you

hope that someone would take this into consideration?

‘‘A. Yes, sir.

‘‘Q. But other than that, you’re here with no promises

and no consideration?

‘‘A. Yes, sir.’’

Later, Stein inquired of Ortiz, as follows:

‘‘Q. As you sit here today, do you have any expectations that you will receive any favorable treatment for

your testimony here today?

‘‘A. Yes, sir.

‘‘Q. And with that, do you expect that there’s some

type of a preset thing that’s going to happen, or you’re

just hoping someone will take this into consideration?

‘‘A. Hoping someone will take it into consideration.

‘‘Q. But as you sit here now, you have absolutely no

promise or any deals that have been set in exchange

for your testimony?

‘‘A. Yes, sir.’’

Ortiz also testified with respect to his belief that the
state’s attorney was ‘‘not capable of promising [him]

anything’’ in relation to his previously imposed eight

year sentence. During cross-examination, Ortiz reiterated that he had not been offered any consideration,

but stated that, in contacting the state’s attorney, he

was looking for some type of an accommodation with

respect to his sentence.

During closing arguments at the petitioner’s criminal

trial, defense counsel pointedly suggested that the evidence demonstrated that Ortiz’ testimony was not credible, but was motivated by his desire to receive a lesser

sentence. Defense counselreferred to Ortiz as ‘‘the classic example of the savvy lifetime criminal,’’ and in relevant part stated that the jury should ‘‘not . . . believe

that Ortiz was at the scene of the shooting that night

and that he is just providing us with what he thinks the

state would want to hear . . . to get some accommodation on his sentence . . . .’’ Stein referred to Ortiz’

testimony. Then, in an attempt to cast doubt on defense

counsel’s argument that Ortiz’ testimony was motivated

by self-interest, he argued in relevant part: ‘‘How cold

a person do you have to be to point an accusatory finger

and say I saw this man commit murder when you’re

doing it for your own motivation? How cold do you

have to be? What is the benefit that would cause a

person to be that cold? [He] ha[s] been promised nothing. Flat out told you [that he] get[s] no benefit. It’s

expected that [he] would cooperate as a good citizen

and a good person.’’

The petitioner presented undisputed evidence that

the court granted the sentence modification application

on September 6, 2007.5 A transcript of the August 20,

2007 hearing on the sentence modification application

was admitted in evidence. At the hearing, Stein referred

to his discussions with Bruckmann that preceded the

application for sentence review. Stein, referring to his

posttrial ‘‘agreement’’ with Ortiz to acquiesce in the

application for sentence review, represented to the

court that his ‘‘agreement with Ortiz . . . was that

[Stein] would not object to the modification and then

[he] would leave them on their merits with . . . Bruckmann and . . . Ortiz to convince this court as to what,

if any, the appropriate modification should be.’’ In support of the application, Bruckmann represented that

Ortiz had told him that he was being threatened in jail,

he was labeled as ‘‘a snitch,’’ and he was told that there

was ‘‘a contract out for his life based on his testimony

[against the petitioner].’’ Stein represented to the court

that when he met with Ortiz prior to the petitioner’s

trial, he found Ortiz to be ‘‘extremely credible’’ and that

he believed his testimony was ‘‘clearly influential’’ in

terms of the conviction obtained by the state against

the petitioner. Stein testified that during his pretrial

meeting with Ortiz, Stein told him that he ‘‘was not in

a position to promise him anything other than the fact

that [he] would make known at the appropriate point
in time about the cooperation that [Ortiz] gave to the

state with regard to the [petitioner’s] homicide case,

which is where we’re at now, fulfilling [Stein’s]

agreement with . . . Ortiz.’’ Stein testified that Ortiz

had contacted him to let him know that he has been

‘‘facing continuous threats’’ as a result of his cooperation with the state.

On appeal, in challenging the court’s findings of fact,

the petitioner argues: ‘‘It is unquestionable—in light of

the evidence presented to the habeas court—that Ortiz

was looking for consideration when he first wrote to

the state. Secondly, it is unquestionable that the prosecuting authority promised Ortiz to make his cooperation

known prior to testifying, be it to a judge or another

person. Thirdly, it is unquestionable that Stein recognized Ortiz’ status as a sentenced prisoner at the time

that this promise was made. Fourthly, it is unquestionable that, at the petitioner’s trial, Ortiz testified that it

was his understanding that only a judge could effectuate

a change upon his sentence. Fifthly, it cannot reasonably be disputed that the only reasonable means for

Stein’s acknowledgement of cooperation to a judge to

have any conceivable effect on Ortiz’ sentence is by

means of a sentence modification hearing.6 Sixthly, the

passage of time between the conclusion of the petitioner’s criminal proceedings and Ortiz’ sentence modification cannot be disputed. Seventhly, it cannot be

disputed that, despite Ortiz’ sentence modification

application being predicated upon ‘threats,’ Ortiz never

sought protective custody while incarcerated. Finally,

it is undisputable that the state’s acquiescence was necessary for a judge to hear Ortiz’ application for a sentence modification, as Ortiz’ sentence exceeded three

years.’’ (Footnote in original.)

Having discussed relevant evidence before the court,

we turn to some principles of law applicable to claims

of this nature. ‘‘[T]he 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. . . . 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. . . .

‘‘It is well established that [i]mpeachment evidence

as well as exculpatory evidence [fall] within Brady’s

definition of evidence favorable to an accused. . . .

[An express or implied] plea agreement between the

state and a key witness is impeachment evidence falling

within the definition of exculpatory evidence contained

in Brady . . . .

‘‘The [United States] Supreme Court established a
framework for the application of Brady to witness plea

agreements in Napue v. Illinois, 360 U.S. 264, 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, this 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; internal quotation marks omitted.) State v. Ouellette, 295 Conn. 173, 185–87, 989 A.2d 1048 (2010).

‘‘[T]he jury’s estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt

or innocence, and it is upon such subtle factors as the

possible interest of the witness in testifying falsely that

a defendant’s life or liberty may depend. . . . Accordingly, the Brady rule applies not just to exculpatory

evidence, but also to impeachment evidence . . .

which, broadly defined, is evidence having the potential

to alter the jury’s assessment of the credibility of a

significant prosecution witness. . . . Because a plea

agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such

agreements are potential impeachment evidence that

the state must disclose. . . .

‘‘Not every failure by the state to disclose favorable

evidence rises to the level of a Brady violation. Indeed,

a prosecutor’s failure to disclose favorable evidence

will constitute a violation of Brady only if the evidence

is found to be material. The Brady rule is based on

the requirement of due process. Its purpose is not to

displace the adversary system as the primary means by

which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is

not required to deliver his entire file to defense counsel,

but only to disclose evidence favorable to the accused

that, if suppressed, would deprive the defendant of a

fair trial . . . . In a classic Brady case, involving the

state’s inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if
there would be a reasonable probability of a different

result if the evidence had been disclosed. [The] . . .

touchstone of materiality is a reasonable probability of

a different result, and the adjective is important. The

question is not whetherthe defendant would more likely

than not have received a different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy

of confidence. A reasonable probability of a different

result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial. . . .

‘‘When . . . a prosecutor obtains a conviction with

evidence that he or she knows or should know to be

false, the materiality standard is significantly more

favorable to the defendant. [A] conviction obtained by

the knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected

the judgment of the jury. . . . This standard . . .

applies whether the state solicited the false testimony

or allowed it to go uncorrected . . . and is not substantively different from the test that permits the state to

avoid having a conviction set aside, notwithstanding a

violation of constitutional magnitude, upon a showing

that the violation was harmless beyond a reasonable

doubt. . . . This strict standard of materiality is appropriate in such cases not just because they involve prosecutorial misconduct, but more importantly because

they involve a corruption of the truth-seeking function

of the trial process. . . . In light of this corrupting

effect, and because the state’s use of false testimony

is fundamentally unfair, prejudice sufficient to satisfy

the materiality standard is readily shown . . . such

that reversal is virtually automatic . . . unless the

state’s case is so overwhelming that there is no reasonable likelihood that the false testimony could have

affected the judgment of the jury.’’ (Citations omitted;

footnotes omitted; internal quotation marks omitted.)

Adams v. Commissioner of Correction, 309 Conn. 359,

369–73, 71 A.3d 512 (2013).

Our Supreme Court has recognized that evidence that

merely suggests an informal understanding between the

state and a state’s witness may constitute impeachment

evidence for purposes of Brady. State v. Floyd, 253

Conn. 700, 740, 756 A.2d 799 (2000). Such evidence is

by no means limited to the existence of plea agreements.

‘‘Any . . . understanding or agreement between any

state’s witness and the state police or the state’s attorney clearly falls within the ambit of Brady principles.

. . . An unexpressed intention by the state not to prosecute a witness does not. . . .

‘‘The question of whether there existed an agreement

between [a witness] and the state is a question of fact

. . . . When reviewing the decision of a habeas court,
the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . .

A finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence in the record to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed. . . . This court does not retry the case or

evaluate the credibility of the witnesses. . . . Rather,

we must defer to the [trier of fact’s] assessment of

the credibility of the witnesses based on its firsthand

observation of their conduct, demeanor and attitude.

. . . The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight

to be given to their testimony. . . . A petitioner bears

the burden of proving the existence of an agreement

between the state or police and a state’s witness.’’ (Citations omitted; internal quotation marks omitted.) Elsey

v. Commissioner of Correction, 126 Conn. App. 144,

152–53, 10 A.3d 578, cert. denied, 300 Conn. 922, 14

A.3d 1007 (2011).

The petitioner argues that the court’s finding that no

pretestimonial agreement existed was clearly erroneous and that ‘‘[t]he habeas court’s findings should

impress upon this court the definite conviction that a

mistake has been committed.’’ The petitioner correctly

suggests that the evidence of what transpired between

Stein and Ortiz generally is not in dispute. The import

of that evidence, that is, whether it reflected the existence of an unwritten or informal understanding that

implicated Brady, is highly disputed. That factual issue

is at the heart of the petitioner’s Brady claim.

As an initial matter, the petitioner argues that the

court misinterpreted or failed to understand the import

of his claim. The petitioner argues that the court

focused solely on whether a plea agreement between

Ortiz and the state existed, rather than on whether any

agreement that would have benefitted Ortiz existed and,

thus,reasonably might be viewed as motivating his testimony. The court’s decision reflects otherwise. Despite

its brevity, the court’s opinion reflects that it did not

limit its analysis to the existence of a written or formal

agreement between Stein and Ortiz or the existence of

a plea agreement. Instead, the court referred to the

lack of any ‘‘undisclosed understandings,’’ the lack of

‘‘clandestine plea arrangements,’’ and the fact that ‘‘no

deals were struck’’ between Stein and the witnesses

at issue, including Ortiz. (Emphasis added.) Thus, it

appears that the court focused on the claim as framed

by the petitioner’s amended petition.7

Essentially, the petitioner’s disagreement with the

court’s findings of fact concerns the court’s failure to

interpret the evidence consistently with his allegations.

The petitioner relies heavily on the timing of the events

at issue and argues that it is circumstantial evidence
that compelled a finding that, prior to the petitioner’s

criminal trial, Stein and Ortiz had come to an understanding that merited disclosure under Brady. Ortiz

received an eight year prison sentence. Ortiz testified

for the state at the petitioner’s criminal trial. Several

months later, Stein agreed that Ortiz’ sentence modification application should be considered by the sentencing

court. Thereafter, the court granted Ortiz’ application

and reduced his sentence by five years.

In reaching its factual findings, the court had the

opportunity to consider the testimony of Ortiz and Stein

with respect to their conversations prior to the petitioner’s trial. Both were consistent in their denial that, prior

to the petitioner’s trial, any agreement had been reached

or that any quid pro quo existed beyond that which was

unambiguously disclosed to the jury at the petitioner’s

criminal trial—that Ortiz, looking for some type of benefit, hoped that Stein would make his cooperation with

the state known in the future, and that Stein agreed to

confer no benefit to Ortiz beyond making his cooperation known.8 The petitioner did not present evidence

that Stein’s promise to acknowledge Ortiz’ cooperation

either explicitly or implicitly conveyed that Stein would

convey any benefit to Ortiz with respect to a sentence

review application. The petitioner did not present evidence that compelled a finding that, prior to the petitioner’s trial, Stein knew that he would give favorable

treatment to Ortiz’ sentence modification application

orthat Ortiz expected Stein to sign off on his application

in exchange for his testimony. To the contrary, Stein

testified that his decision to acquiesce in the application

was based on communications that he had with Ortiz

and Bruckmann, concerning Ortiz’ well-being in prison,

following the petitioner’s trial. Cf. Elsey v. Commissioner of Correction, supra, 126 Conn. App. 155–57

(evidence that court modified sentence of state’s witness two weeks prior to his testimony suggested existence of informal understanding between witness and

state under second prong of Brady). The evidence that

Stein was motivated to acquiesce in Ortiz’ sentence

modification application following the petitioner’s trial

did not implicate a duty to disclose under Brady at the

time of trial.

The evidence amply supported the inferences that

the court drew from it, and we are not persuaded that

a mistake was committed. In the absence of a showing

that any understanding existed with respect to sentence

modification, as claimed by the petitioner, he is unable

to demonstrate that it should have been disclosed under

Brady.

9 For the foregoing reasons, we conclude that

the petitioner has failed to demonstrate that the court

abused its discretion in denying the petition for certification to appeal with respect to this claim.10

II

Second, the petitioner claims that his right to the
effective assistance of counsel was violated by virtue

of representation afforded him by counsel in a prior

habeas proceeding. The petitioner argues that prior

counsel rendered ineffective assistance because they

failed to identify, understand, research, raise, or argue

the Brady claim analyzed in part I of this opinion.

We disagree.

As stated previously, the habeas court determined

that, in light of its finding that no Brady violations

occurred, the petitioner was not entitled to relief with

respect to the present claim. This analysis is sound.

Even if the petitioner could demonstrate that counsel

performed deficiently with respect to the Brady claim

concerning Ortiz, our analysis set forth in part I of this

opinion necessarily leads us to conclude that the court

properly determined that the petitioner was unable to

demonstrate that he was prejudiced by counsel’s performance because no Brady violation occurred. See Gerald W. v. Commissioner of Correction, 169 Conn. App.

456, 463–64, 150 A.3d 729 (2016) (petitioner bears burden of proving deficient performance and prejudice

resulting therefrom), cert. denied, 324 Conn. 908, 152

A.3d 1246 (2017). Accordingly, we conclude that the

petitioner has failed to demonstrate that the court

abused its discretion in denying the petition for certification to appeal with respect to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The court denied the petition for a writ of habeas corpus ‘‘except for

the restoration of sentence review as ordered previously.’’

2 At the habeas trial, the petitioner’s counsel examined Ortiz in relevant

part, as follows:

‘‘Q. So prior to testifying in the petitioner’s case, what understanding did

you have about how an individual might get released earlier . . . than the

sentence date?

‘‘A. Well, that was never brought up.

‘‘Q. What was your understanding of that process?

‘‘A. My understanding [in] coming forward [was that] Stein said it’s not

a promise. . . . So I’m going up there willingly myself. . . .

‘‘Q. Well, I’m asking you about your understanding of the process by

which you could have been released early from prison. . . . Did you understand that there was some way to get out early?

‘‘A. No . . . it was a hopeful thing I’d get out early, but it was not a

promise.

‘‘Q. But did you have an understanding [as] someone who had been

involved in the criminal justice system how you might be able to get out early?

‘‘A. Yes. . . . Well, my understanding is . . . I come forward and testif[y].

That was my hope to get out early, but other than that, I came forward

myself.’’

The examination of Ortiz by the petitioner’s counsel continued in relevant

part, as follows:

‘‘Q. [B]ut you understood that if you participate in a criminal proceeding,

there’s some chance . . . something could happen that . . . would get

[you] out of prison early.

‘‘A. When I participated in it, it was promised—it was hopeful that something would happen, but it was, like Stein said, there’s nothing promised.

‘‘Q. So at the conclusion of your discussions . . . with . . . Stein way

back before the petitioner’s trial, did you leave there with an understanding

that you would have an opportunity to get in front of a judge at some point?

‘‘A. No.’’

3 General Statutes § 53a-39 (b) provides: ‘‘At any time during the period

of a definite sentence of more than three years, upon agreement of the
defendant and the state’s attorney to seek review of the sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce

the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed

that to which the defendant could have been originally sentenced.’’

4 Ortiz testified that in the letter he intended to thank Stein for working

on his behalf and that Stein had not promised him anything.

5 A copy of the completed application was admitted in evidence. The

portion of the application entitled ‘‘reason for request’’ states: ‘‘[Ortiz] was

a prosecution witness in a murder case that resulted in a murder conviction.

As a result of his cooperation, [Ortiz’] life has been threatened while he

remains incarcerated.’’

6

‘‘At the time of the petitioner’s trial, it may have been possible for Ortiz

to pursue a petition for a writ of [error] coram nobis or . . . a motion to

correct an illegal sentence, but there is no evidence that either were even

considered, northat Stein’s acknowledgement could have had an appreciable

effect on either mechanism of relief. . . .’’

7 The petitioner alleged that implied plea agreements existed between the

state, on the one hand, and McIntosh and Jefferson, on the other hand. To

the extent that, in its findings of fact, the court referred to plea agreements,

it is reasonable to interpret such references as pertaining to these allegations,

not the allegations pertaining to Ortiz.

8 As discussed previously in this opinion, to the extent that, at the hearing

on the application for sentence modification, Stein testified that he had

reached an ‘‘agreement’’ with Ortiz not to object to the application, it is

clear that such agreement was reached following the petitioner’s trial and

was based on events that occurred following the petitioner’s trial.

9

Intertwined in the analysis of the petitioner’s Brady claim, which is

based upon the state’s failure to disclose certain information concerning

Ortiz, is an argument that the state ‘‘knowingly solicited Ortiz’ false testimony

concerning ‘no promises’ and allowed this testimony to stand uncorrected.’’

He argues that the state failed to disclose certain evidence and that the

prosecutor failed to correct Ortiz’ testimony. It does not appear that the

latter aspect of the claim raised on appeal, which is not based upon the

state’s failure to disclose information concerning Ortiz, but rather on the

state’s failure to correct allegedly perjured testimony given by Ortiz under

Napue v. Illinois, supra, 360 U.S. 264, was distinctly raised before the habeas

court or that the court considered this claim in denying the petition for a

writ of habeas corpus.

‘‘A petition for a writ of habeas corpus must set forth specific grounds

for the issuance of the writ. Practice Book § 23-22 (1) specifically provides

that the petition shall state the specific facts upon which each specific claim

of illegal confinement is based and the relief requested . . . . A reviewing

court will not consider claims not raised in the habeas petition or decided

by the habeas court. . . . Appellate review of claims not raised before the

habeas court would amount to an ambuscade of the [habeas] judge.’’ (Internal quotation marks omitted.) Rodriguez v. Commissioner of Correction,

131 Conn. App. 336, 351, 27 A.3d 404 (2011), aff’d, 312 Conn. 345, 92 A.3d

944 (2014). ‘‘It is well settled that [t]he petition for a writ of habeas corpus

is essentially a pleading and, as such, it should conform generally to a

complaint in a civil action. . . . The principle that a plaintiff may rely only

upon what he has alleged is basic. . . . It is fundamental in our law that

the right of a plaintiff to recoveris limited to the allegations of his complaint.’’

(Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 201–202, 1 A.3d 1102, cert. denied, 298 Conn. 930,

5 A.3d 488 (2010). The petitioner argues that he raised the Napue issue

sufficiently in his pretrial and posttrial briefs, yet he does not dispute that

he did not raise this issue in his amended petition, which framed the issues

before the court, or that the court did not address the issue, the resolution

of which requires distinct factual findings, it in its memorandum of decision.

Accordingly, we will not consider this claim in our analysis of the court’s

decision to deny the petition for certification to appeal.

10 Additionally, the petitioner argues that this court ‘‘should exercise its

supervisory authority to require a jury instruction concerning the sentence

modification procedure in Connecticut any time the state represents to a

sentenced inmate that the state will make the witness’ cooperation known.’’

‘‘[O]ur supervisory authority . . . is not a form of free-floating justice,

untethered to legal principle. . . . [T]he integrity of the judicial system

serves as a unifying principle behind the seemingly disparate use of our

supervisory powers. . . . [O]ur supervisory powers are invoked only in the
rare circumstance where [the] traditional protections are inadequate to

ensure the fair and just administration of the courts . . . .’’ (Internal quotation marks omitted.) State v. Kuncik, 141 Conn. App. 288, 292–93, 61 A.3d

561, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013). As discussed previously

in this opinion, Brady requires the disclosure of evidence that is favorable

and material to the defense, including impeachment evidence. State v. Ouellette, supra, 295 Conn. 185–87. The petitioner has not persuaded us that the

protections afforded under Brady do not adequately protect his right to a

fair trial.