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ERNESTO P.* v. COMMISSIONER

OF CORRECTION

(AC 36163)

Gruendel, Mullins and Pellegrino, Js.

Argued May 14—officially released August 4, 2015

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

Vishal K. Garg, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Erika L. Brookman, assistant state’s

attorney, for the appellee (respondent).
Opinion

PELLEGRINO, J. The petitioner, Ernesto P., 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. On

appeal, the petitioner claims that the habeas court

improperly (1) denied his petition for certification to

appeal and (2) denied his petition for a writ of habeas

corpus. Because the petitioner has failed to demonstrate that the court abused its discretion in denying

the petition for certification to appeal, we dismiss

the appeal.

The following facts, set forth in the petitioner’s direct

appeal; see State v. Ernesto P., 135 Conn. App. 215, 41

A.3d 1115, cert. denied, 305 Conn. 912, 45 A.3d 98 (2012);

and procedural history are relevant to our resolution

of this appeal. In 2006, the petitioner was a single father,

living in an apartment in Hartford with his daughter.

Id., 217. His daughter’s friends, including the eleven

year old victim, often spent time at the petitioner’s

apartment. Id. In one instance in the summer of 2006,

the petitioner told his daughter to clean her room in

order to spend time alone with the victim. Id. While the

petitioner was alone with the victim, he touched her

breasts and vaginal area outside her clothing. Id. When

his daughter returned from her room, she witnessed

the petitioner ‘‘humping’’ the victim. Id., 218. The victim

and the daughter contacted the police, but the daughter

falsely denied witnessing the incident because she was

scared the petitioner would hurt her. Id. Approximately

two months later, the petitioner returned home to find

his daughter and the victim in his house. Id. He then

ordered his daughter to take a shower and was again

alone with the victim. Id. While his daughter was showering, the petitioner took nude photographs of the victim and then sodomized her. He stopped when his

daughter finished her shower. Id. The victim did not

contact the police; she did not think the police would

take action because ‘‘they didn’t believe’’ her initial

report several weeks earlier. Id., 218–19.

Approximately two years later, the Department of

Children and Families became aware of the incidents

between the victim and the petitioner. Id., 219. The

police executed a search warrant on the petitioner’s

home, where they found eleven photographs of the victim exposing her naked breasts, buttocks, vagina, and

anus. Id.

On November 25, 2008, the petitioner was arrested

and charged with one count of sexual assault in the

first degree by the threat of use of force in violation of

General Statutes § 53a-70 (a) (1), one count of sexual

assault in the first degree by intercourse with a victim

under the age of thirteen in violation of § 53a-70 (a)

(2), one count of sexual assault in the third degree in
violation of General Statutes § 53a-72a (a) (1) (B), one

count of risk of injury to a child in violation of General

Statutes § 53-21 (a) (1), one count of risk of injury to

a child in violation of § 53-21 (a) (2), one count of

possession of child pornography in the third degree in

violation of General Statutes § 53a-196f (a), and one

count of employing a minor in an obscene performance

in violation of General Statutes § 53a-196a (a) (1). Id.,

216–17. Following a jury trial, the petitioner was convicted of all counts and sentenced to a total effective

term of twenty years incarceration and five years of

special parole. Id., 220.

On direct appeal, this court affirmed the petitioner’s

conviction. Id., 232. Thereafter, on July 9, 2010, the

petitioner, self-represented, filed a petition for a writ

of habeas corpus and on November 28, 2012, the petitioner, through habeas counsel, filed an amended petition for a writ of habeas corpus. He alleged, inter alia,

ineffective assistance of trial counsel on the basis of

counsel’s alleged failure to present evidence that corroborated the petitioner’s claim that his apartment did

not have hot water during the relevant time and that,

because of this, his daughter did not take showers at his

apartment, which would have undermined the victim’s

testimony and supported the petitioner’s testimony.1

The habeas court denied the petition for a writ of

habeas corpus in a memorandum of decision dated

September 4, 2013, finding that the evidence presented

did not establish, ‘‘without resort to speculation, guesswork or presumption,’’ that there was no hot water in

the apartment and that there was no account for gas

through Connecticut Natural Gas or another utility company that could have provided hot water to the apartment. According to the court, the evidence that the

petitioner did not have an account with Connecticut

Natural Gas in his name was insufficient to prove that

counsel was deficient or that the petitioner suffered

any kind of prejudice. In addition, the habeas court

found that trial counsel did investigate and spoke with

an individual whom the petitioner said had all of the

information regarding the hot water issue, yet counsel

testified that the individual did not know anything about

the hot water issue. Furthermore, the court held that

‘‘there’s little to no evidence to support the fact that

even if the court believed it true that there was not a

hot water account going to that apartment, that that,

in and of itself, means that people could not have taken

showers.’’ The court was persuaded by the argument

from the respondent, the Commissioner of Correction,

that the petitioner lived in the apartment for three years

during which there was no gas account in his name,

yet there was no evidence presented that he was unable

‘‘to cleanse himself and/or take showers.’’ For the foregoing reasons, the court denied the petition for a writ

of habeas corpus.
Thereafter, the petitioner sought certification to

appeal from the denial of his petition for a writ of habeas

corpus, which the court denied. This appeal followed.

On appeal, the petitioner claims that the habeas court

abused its discretion when it denied his petition for

certification to appeal and that the court improperly

denied his petition for a writ of habeas corpus. Specifically, he claims that the habeas court erred by denying

the petition for certification to appeal because a different court could have resolved the issue differently and

the claim is debatable among jurists of reason. He further claims that the petition for a writ of habeas corpus

should have been granted because trial counsel’s performance was deficient in that he failed to obtain and

present evidence regarding the lack of hot water in the

petitioner’s apartment.

We begin our analysis with the relevant standard of

review. ‘‘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]; or that the 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. . . .

‘‘We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine

whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard

of review of a habeas court’s judgment on ineffective

assistance of counsel claims is well settled. 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. . . .

‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States

Supreme Court enunciated the two requirements that

must be met before a petitioner is entitled to reversal

of a conviction due to ineffective assistance of counsel.

First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner]

must show that the deficient performance prejudiced

the defense. . . . Unless a [petitioner] makes both

showings, it cannot be said that the conviction . . .

resulted from a breakdown in the adversarial process

that renders the result unreliable. . . . A reviewing

court need not address both components of the inquiry

if the [petitioner] makes an insufficient showing on

one.’’(Citations omitted; internal quotation marks omitted.) McGee v. Commissioner of Correction, 157 Conn.

App. 863, 867–68, A.3d (2015). With that standard in mind, we examine the petitioner’s claims.

The petitioner claims that the habeas court erred by

denying the petition for certification to appeal because a

different court could have resolved the issue differently.

We disagree. Even if the petitioner presented evidence

at the criminal trial to demonstrate that his apartment

lacked hot water, the petitioner has failed to show what,

if any, relevance the evidence would have had on the

outcome of his criminal trial.

The petitioner argues that if his trial counsel had

presented the hot water evidence, it would have

impeached the victim’s testimony that the petitioner’s

daughter was in the shower when the petitioner took

nude photographs and sodomized the victim and also

would have corroborated the petitioner’s criminal trial

testimony that his daughter did not shower at his apartment. We are not persuaded. At trial, the victim testified

that the petitioner ordered his daughter to take a

shower, resulting in the victim being alone with the

petitioner. See State v. Ernesto P., supra, 135 Conn.

App. 218. The credibility of this statement does not

hinge on whether there was hot water in the apartment,

but instead on the credibility of the victim, who testified

that the petitioner essentially coerced his daughter into

taking a shower. No evidence was presented to the

habeas court to refute the argument that the daughter

could have showered without hot water.

Furthermore, although the petitioner argues that trial

counsel failed to investigate and present evidence that

corroborated the petitioner’s testimony that his daughter did not take showers at his apartment because he

did not have hot water, the habeas court found that

trial counsel did investigate the leads given to him by the

petitioner, yet the leads proved fruitless. Trial counsel

testified that he used an investigator to locate various

babysitters and other people whom the petitioner

claimed had knowledge of the hot water issue. The

investigator, however, was unable to contact the babysitters after repeated attempts. The other person to
whom the petitioner directed trial counsel had no

knowledge of the hot water issue. The habeas court

found that trial counsel’s decision to investigate the hot

water issue no further was not unreasonable, especially

in light of the evidence presented to the court that many

of the other leads the petitioner gave trial counsel were

fruitless. ‘‘[W]hen a defendant has given counsel reason

to believe that pursuing certain investigations would

be fruitless . . . counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.’’ (Internal quotation marks omitted.) Gaines v.

Commissioner of Correction, 306 Conn. 664, 681, 51

A.3d 948 (2012).

Further, trial counsel testified that he did not find

the issue of hot water particularly relevant because

even without hot water, the daughter still could have

taken a shower. ‘‘[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary. In

any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgments.’’ (Internal quotation marks omitted.) Gonzales v. Commissioner of Correction, 145 Conn. App. 16, 24, 75 A.3d 705, cert. denied,

310 Conn. 932, 78 A.3d 858 (2013). Counsel testified

that evidence relating to hot water would have been

irrelevant to the defense theory that the petitioner’s

former wife had conspired with his daughter and the

victim to accuse the petitioner of sexual assault. Under

the circumstances, trial counsel’s decision not to continue the investigation into the hot water issue was reasonable.

On the basis of our review of the record, we conclude

that the petitioner has not established that the habeas

court’s resolution of the allegations in his amended

petition is debatable among jurists of reason, that a

court could have resolved them in a different manner,

or that the questions presented are adequate to deserve

encouragement to proceed further. See Lozada v.

Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed.

2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616.

The habeas court, therefore, did not abuse its discretion

in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the petitioner’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 The amended petition included additional counts against trial counsel

and a claim against appellate counsel. These counts were withdrawn by the

petitioner during the habeas hearing and are not subjects of this appeal.