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*********************************************** 
LUIS LEBRON v. COMMISSIONER

OF CORRECTION

(AC 43579)

Bright, C. J., and Alvord and Prescott, Js.

Syllabus

The petitioner, who previously had been convicted, on a guilty plea, of the

crimes of manslaughter in the first degree with a firearm and conspiracy

to commit witness tampering, filed his third petition for a writ of habeas

corpus, claiming, inter alia, that he had received ineffective assistance

from D, his first habeas counsel. At the petitioner’s criminal trial, the

trial court permitted his defense counsel, S, to withdraw on the ground

that he could be called as a witness at trial. The petitioner indicated to

the court that he waived any conflict, and wanted to proceed to trial

and was prepared to represent himself, which the court did not allow.

The petitioner thereafter was charged with additional crimes in a separate docket, and C was appointed to represent him on all of the charges,

after which the petitioner entered his plea. In the first habeas action,

the petitioner alleged that S and C had rendered ineffective assistance.

The habeas court denied the petition, and D failed to file a timely petition

for certification to appeal. In the second habeas action, in which the

petitioner alleged that S, C and D had provided ineffective assistance,

the habeas court rendered judgment restoring the petitioner’s appellate

rights with respect to the issues raised in the first habeas petition. The

petitioner thereafter appealed from the denial of his first habeas petition,

but did not raise the merits of his claims in that first petition against S

and C. This court affirmed the judgment of the first habeas court. The

petitioner then filed his third habeas petition, and the habeas court

rendered a judgment of dismissal, concluding that there was no good

cause to proceed to trial. This court reversed in part the judgment of

the habeas court and remanded the case for a trial on the merits of the

petitioner’s claim that his right to the effective assistance of habeas

counsel had been violated. The petitioner claimed that D failed to pursue

a claim that his right to the effective assistance of criminal trial counsel

had been violated when C failed to advise him properly that his plea

would operate as a waiver of his appellate rights, specifically, his right

to challenge the trial court’s granting of S’s motion to withdraw. After

a trial on the merits, the habeas court rendered judgment denying the

petitioner’s claim on the ground that he had failed to prove prejudice

because he failed to establish that he would not have pleaded guilty

but for counsel’s alleged deficient performance. Thereafter, the habeas

court granted the petition for certification to appeal, and the petitioner

appealed to this court. Held that the habeas court properly denied the

petitioner’s ineffective assistance of habeas counsel claim because he

failed to establish that he was prejudiced by the alleged deficient performance of C; the petitioner faced a possible sentence of 140 years of

incarceration with no possibility of parole if convicted at trial, and C was

able to negotiate a reduction in the charges and a state recommended

sentence of thirty years of incarceration with the possibility of parole

in exchange for the petitioner’s plea, and the record supported the

court’s finding that the petitioner would not have declined that plea

offer on the chance that he could convince a jury on a retrial, after he

was convicted once and successfully appealed on the grounds he claimed

he would have pursued if he had been counseled properly by C, that

he was not guilty, as the state’s case against the petitioner was strong,

the petitioner’s claim of self-defense had significant weaknesses, and

the court was free to discredit the petitioner’s testimony that he would

have gone to trial had he been counseled by C that his issues regarding

S’s withdrawal and his right to self-representation could have been raised

on appeal had he been convicted.

Argued February 4—officially released April 20, 2021

Procedural History
Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland where the court Sferrazza, J., rendered judgment dismissing the petition, from which the petitioner,

on the granting of certification, appealed to this court,

Keller, Prescott and Kahn, Js., which reversed in part

the judgment of the habeas court and remanded the

case for a trial on the merits; subsequently, the matter

was tried to the court before Bhatt, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

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

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, and Leah Hawley, former senior assistant

state’s attorney, for the appellee (respondent).
Opinion

BRIGHT, C. J. The petitioner, Luis Lebron, appeals

from the judgment of the habeas court denying his

petition for a writ of habeas corpus. The habeas court

granted his petition for certification to appeal. On

appeal, the petitioner claims that the habeas court

improperly rejected his claim that his right to the effective assistance of counsel was violated when his first

habeas counsel, Attorney Sebastian DeSantis, failed to

pursue a claim that the petitioner’s criminal trial counsel, Attorney Thomas Conroy, had provided ineffective

assistance when he failed to advise the petitioner that

he would be waiving his appellate rights by pleading

guilty. We affirm the judgment of the habeas court.

The following facts and somewhat complicated procedural history inform our review. The state, in 1997,

originally charged the petitioner with murder in violation of General Statutes § 53a-54a (a) and criminal use

of a firearm in violation of General Statutes § 53a-216

after he shot and killed another man. The petitioner

claimed that he shot the victim in self-defense. Attorney

Kenneth Simon represented the petitioner in connection with these charges. During jury selection, in January, 1999, it became apparent to Simon that the petitioner would be charged with conspiracy to commit

additional crimes relating to two witnesses to the shooting, namely, two counts of conspiracy to commit witness tampering and two counts of conspiracy to commit

murder. Simon then filed a motion to withdraw from

representing the petitioner, stating that he believed that

he likely would be called as a witness during the trial

on the anticipated new charges. The petitioner opposed

Simon’s motion and argued, in the alternative, that he

should be able to represent himself temporarily, until

a special public defender could be appointed. On January 27, 1999, the court denied the petitioner’s request

to represent himself temporarily, granted Simon’s

motion to withdraw, and declared a mistrial. In a separate information, the state additionally charged the petitioner with two counts of conspiracy to commit murder

in violation of General Statutes §§ 53a-48 and 53a-54a,

and two counts of conspiracy to commit witness tampering in violation of General Statutes §§ 53a-48 and

53a-151. Attorney Conroy later was appointed to represent the petitioner on all of the charges

Conroy negotiated a plea agreement with the state

that resolved all charges against the petitioner, pursuant

to which the petitioner pleaded guilty under the Alford

doctrine1

to one count of manslaughter in the first

degree with a firearm in violation of General Statutes

§ 53a-55a and one count of conspiracy to commit witness tampering. The court sentenced the petitioner to

a term of thirty years of incarceration on the manslaughter charge and to an unconditional discharge on the

conspiracy charge. The state entered a nolle prosequi
as to all of the other charges.

In June, 2000, the petitioner filed his first petition for

a writ of habeas corpus. The petitioner’s first habeas

counsel, Attorney DeSantis, filed an amended petition,

in which the petitioner alleged ineffective assistance

of counsel as to Simon and Conroy. Specifically, the

amended petition contained allegations that counsel

had rendered ineffective assistance by failing to pursue

discovery and to communicate with the petitioner about

discovery, by failing to challenge the petitioner’s arrest

and the circumstances surrounding his arrest, by failing

to challenge the arrest warrant, and by failing to communicate with the petitioner regarding legal and evidentiary standards so that he could make an informed decision on whether to plead guilty or to proceed to trial. On

February 20, 2003, the habeas court denied the amended

habeas petition (first habeas court’s decision). DeSantis

did not file a timely petition for certification to appeal

from the first habeas court’s decision. The petitioner,

however, filed a pro se petition for certification to

appeal on February 26, 2003, which was denied. No

appeal from that denial was timely taken.

On July 18, 2006, the petitioner, represented by Attorney Paul Kraus, filed a second petition for a writ of

habeas corpus, alleging the ineffective assistance of

counsel as to Simon, Conroy, and DeSantis. The habeas

court and the petitioner entered a stipulated agreement

to restore the petitioner’s appellate rights in the first

habeas case (second habeas case). The court also

granted a petition for certification to appeal from the

first habeas court’s decision. On September 8, 2006, the

petitioner filed an appeal from the first habeas court’s

decision limited only to whether the first habeas court

improperly had denied his postjudgment motions for

reconsideration and reargument. This court denied

review of those claims because they fell outside the

scope of the stipulated agreement in the second habeas

case, and our Supreme Court denied the petition for

certification to appeal from our decision. See Lebron

v. Commissioner of Correction, 108 Conn. App. 245,

249, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d

151 (2008).

Nearly ten years later, on January 8, 2016, the petitioner filed a six count amended petition for a writ of

habeas corpus, his third such petition. On May 5, 2016,

the habeas court rendered a judgment of dismissal on

the amended petition, concluding that there was no

good cause to proceed to trial. The habeas court granted

the petition for certification to appeal on May 18, 2016.

On appeal, this court reversed in part the judgment of

the habeas court and remanded the case for, inter alia,

a trial on the merits of the petitioner’s claim that his

right to the effective assistance of habeas counsel had

been violated because DeSantis had failed to pursue a

claim that the petitioner’s right to the effective assis-
tance of criminal trial counsel had been violated when

Conroy failed to advise the petitioner properly that his

Alford plea would operate as a waiver of his appellate

rights, specifically, his right to challenge the criminal

trial court’s granting of Simon’s motion to withdraw.

See Lebron v. Commissioner of Correction, 178 Conn.

App. 299, 319–24, 175 A.3d 46 (2017), cert. denied, 328

Conn. 913, 179 A.3d 779 (2018).

The habeas court proceeded to a hearing on the merits of the petitioner’s remaining claim. On August 28,

2019, the habeas court issued a memorandum of decision denying the petition on the ground that the petitioner had failed to prove prejudice because he failed

to establish that he would not have pleaded guilty but

for counsel’s alleged deficient performance. The court,

thereafter, granted the petitioner’s petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court

improperly rejected his claim that his right to the effective assistance of counsel was violated when his first

habeas counsel, DeSantis, failed to pursue a claim that

the petitioner’s criminal trial counsel, Conroy, had

failed to advise him that, by pleading guilty, he would

be waiving his rights to challenge on appeal the decision

of the criminal trial court allowing Simon to withdraw

and denying the petitioner’s alternative request to represent himself. He alleges that the actions of the criminal

trial court violated his constitutional rights to his counsel of choice and to self-representation. The respondent,

the Commissioner of Correction, maintains that the

petitioner failed to meet the prejudice prong of his

ineffective assistance of counsel claim, and, therefore,

the habeas court properly rejected the claim. We agree

with the respondent.

We now turn to the merits of the petitioner’s claim,

recognizing that the claimed ineffective assistance

regarding his first habeas counsel, DeSantis, must fail

if the claims of ineffective assistance of his replacement

trial counsel, Conroy, are without merit. See Lozada v.

Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992).

In Lozada, our Supreme Court ‘‘established that

habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas,

namely, a second petition for a writ of habeas corpus

. . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . .

[that] had claimed ineffective assistance of counsel at

the petitioner’s underlying criminal trial or on direct

appeal. . . . Nevertheless, the court in Lozada also

emphasized that a petitioner asserting a habeas on a

habeas faces the herculean task . . . of proving in

accordance with Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both

(1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective. . . . Any

new habeas trial would go to the heart of the underlying

conviction to no lesser extent than if it were a challenge

predicated on ineffective assistance of trial or appellate

counsel. The second habeas petition is inextricably

interwoven with the merits of the original judgment by

challenging the very fabric of the conviction that led to

the confinement.’’ (Citations omitted; internal quotation

marks omitted.) Lebron v. Commissioner of Correction, supra, 178 Conn. App. 319–20.

‘‘A claim of ineffective assistance of counsel consists

of two components: a performance prong and a prejudice prong. . . . For ineffectiveness claims resulting

from guilty pleas, we apply the standard set forth in

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.

Ed. 2d 203 (1985) . . . . To satisfy the performance

prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.’’ (Citations omitted; footnotes omitted; internal quotation marks omitted.) Bigelow v. Commissioner of Correction, 175

Conn. App. 206, 212–14, 167 A.3d 1054, cert. denied,

327 Conn. 929, 171 A.3d 455 (2017).

‘‘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. . . . [T]his court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous . . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question

of law and fact, which is subject to plenary review.’’

(Citation omitted; internal quotation marks omitted.)

Godfrey v. Commissioner of Correction, 202 Conn.

App. 684, 693, A.3d (2021).

In evaluating the prejudice prong and the credibility

of the petitioner’s assertion that he would have insisted

on going to trial but for Conroy’s deficient performance,

it is appropriate for the habeas court to consider

whether a decision to reject a plea offer, under the

circumstances presented, would have been rational. See

Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473,

176 L. Ed. 2d 284 (2010). ‘‘Additionally, a petitioner’s

assertion after he has accepted a plea that he would

have insisted on going to trial suffers from obvious

credibility problems . . . . In evaluating the credibility

of such an assertion, the strength of the state’s case is

often the best evidence of whether a defendant in fact

would have changed his plea and insisted on going to

trial . . . . Likewise, the credibility of the petitioner’s

after the fact insistence that he would have gone to

trial should be assessed in light of the likely risks that

pursuing that course would have entailed.’’ (Internal
quotation marks omitted.) Colon v. Commissioner of

Correction, 179 Conn. App. 30, 36–37, 177 A.3d 1162

(2017), cert. denied, 328 Conn. 907, 178 A.3d 390 (2018).

In the present case, the petitioner argues that his

underlying claims regarding the alleged violations of

his rights to self-representation and to counsel of choice

had considerable merit. The petitioner asserts that if

Conroy had informed him of the merits of his constitutional claims and explained that, by pleading guilty, he

would be giving up his right to assert those claims on

appeal, he would not have entered an Alford plea but,

instead, would have proceeded to trial. In its memorandum of decision, the habeas court concluded that the

petitioner failed to demonstrate prejudice because he

did not establish that, even if it assumed that the petitioner had been counseled by Conroy that his claims

had merit and that, following a conviction, the petitioner could raise those claims in an appeal and, if

successful on appeal, would be entitled to a retrial on

the charges, the petitioner would not have accepted the

plea offer but, instead, would have elected to proceed

to trial.

In particular, the court credited the testimony of

Simon and Conroy that the petitioner’s self-defense

claim had significant weaknesses and that there was a

strong likelihood that the petitioner would be convicted

of murder, or at least manslaughter in the first degree,

on the original charges. In addition, the petitioner faced

another eighty years of exposure arising out of the

additional charges of conspiracy to commit murder and

conspiracy to tamper with witnesses. The court also

noted that the petitioner’s potential constitutional

claims for appeal relating to Simon’s withdrawal and

to the petitioner’s right of self-representation, at best,

would have resulted only in another trial on the same

charges with the same evidence available to the prosecution. On the basis of these underlying facts, the court

clearly did not credit the petitioner’s testimony that he

would not have pleaded guilty had he been advised

properly by Conroy. Specifically, the court stated that

it ‘‘fail[ed] to see how the petitioner would want to risk

exposing himself to a significantly longer sentence at

a trial when the basis for a new trial would do nothing

to make it more likely that he would be acquitted at

the first or second trial. Put another way, pursuing the

two claims he wished to [pursue] would only result in

a second trial at which the state’s evidence would be

the same as that at the first. In light of that, it is not

reasonable to conclude that the petitioner would have

rejected the favorable offer and proceeded to trial.’’ We

conclude that the court’s finding that the petitioner

failed to establish that but for Conroy’s alleged deficient

performance, he would not have pleaded guilty but

would have gone to trial was not clearly erroneous.

The petitioner faced a total possible sentence of 140
years of incarceration, with no possibility of parole

if convicted at trial. Conroy was able to negotiate a

reduction in the charges and a state recommended sentence of thirty years, with a right for the petitioner to

argue for a lesser sentence, in exchange for the petitioner entering an Alford plea. At sentencing, Conroy

argued for an unconditional discharge on the conspiracy charge, which the court granted and thereafter sentenced the petitioner to thirty years to serve on the

manslaughter charge; the state nolled the remaining

charges.

In addition, Conroy testified that he believed the state

had a strong case against the petitioner and that he had

urged the petitioner to take the plea bargain to avoid

the risk of a murder conviction. In its memorandum

of decision, the habeas court also discussed Conroy’s

testimony during the petitioner’s first habeas trial that

one of the benefits of the petitioner’s plea of guilty to

the manslaughter charge was that he would be eligible

for parole, but if he had been convicted of the murder

charge, he would have been ineligible for parole.

The record further demonstrates that the state’s case

against the petitioner was strong. In the petitioner’s

own statement to the police, he admitted that he drew

his firearm first and pointed it at the victim. A witness

identified the petitioner as the shooter, and the charges

against the petitioner for conspiracy to commit murder

were related to the petitioner’s attempt to prevent that

witness and another person from testifying at his criminal trial.

During the habeas trial, although the petitioner testified that he believed he had a strong case, and he wanted

to continue to trial after Simon withdrew because he

‘‘felt that . . . the case would go in [his] favor,’’ he

also testified that Conroy told him that the state’s case

against him was ‘‘voluminous.’’ Further, although the

petitioner testified that he would have gone to trial if he

had known that his issues regarding Simon’s withdrawal

and his right to self-representation could be raised on

appeal if he were convicted, the court was free to discredit this testimony.

The record clearly supports the court’s finding that

the petitioner would not have declined a plea offer

of thirty years of incarceration, with the possibility of

parole, on a roll of the dice that he could convince

a jury on a retrial, after he was convicted once and

successfully appealed from that conviction, that he was

not guilty. A reversal of the judgment of conviction by

this court on the grounds that the petitioner claims he

would have raised on appeal, if successful, would not

have resulted in an acquittal, but would have resulted in

a retrial with the same evidence and with the petitioner

again facing a possible sentence of 140 years in prison

with no possibility of parole on the murder and conspiracy to commit murder charges. We conclude that the
habeas court’s finding that the petitioner failed to establish that there was a reasonable probability that he

would not have pleaded guilty but for Conroy’s alleged

deficient performance was not clearly erroneous.

Accordingly, we conclude, as a matter of law, that the

habeas court properly determined that the petitioner

failed to satisfy the prejudice prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘Under North Carolina v. Alford, [400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970)], a criminal defendant is not required to admit his guilt . . .

but consents to being punished as if he were guilty to avoid the risk of

proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial

oxymoron in that the defendant does not admit guilt but acknowledges that

the state’s evidence against him is so strong that he is prepared to accept

the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)

State v. Walker, 187 Conn. App. 776, 778 n.2, 204 A.3d 38, cert. denied, 331

Conn. 914, 204 A.3d 703 (2019).