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JULIAN MARQUEZ v. COMMISSIONER

OF CORRECTION

(AC 38016)

DiPentima, C. J., and Mullins, and Foti, Js.

Argued October 24, 2016—officially released January 10, 2017

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

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

Michael D. Day, for the appellant (petitioner).

Lisa Herskowitz, senior assistant state’s attorney,

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

attorney, and Angela Macchiarulo, senior assistant

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

FOTI, J. The petitioner, Julian Marquez, appeals from

the judgment of the habeas court denying his petition

for a writ of habeas corpus. On appeal, he claims that

the habeas court(1) abused its discretion by denying his

petition for certification to appeal, and (2) improperly

concluded that the alleged conduct of the prosecutor

in the underlying criminal proceeding did not violate

the petitioner’s right to due process and a fair trial.

We conclude that the habeas court did not abuse its

discretion in denying the petition for certification to

appeal, and, accordingly, dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. The

petitioner’s conviction arises from a home invasion that

occurred in the early hours of December 20, 2003, during which the petitioner and an accomplice, Edwin

Soler, forced entry into an apartment at gunpoint,

robbed four men in the apartment, struggled with and

ultimately fatally shot one of the robbery victims, and

then fled into the night.1 Only the petitioner carried a

weapon. The robbery victim who was killed, Miguel

Delgado, Jr., lived at the apartment, and the other three

robbery victims, Christopher Valle, Mark Clement, and

Amauri Escobar, were friends visiting Delgado. The

petitioner was charged with, and, after a jury trial, ultimately was convicted of, one count of felony murder

in violation of General Statutes § 53a-54c, two counts

of robbery in the first degree in violation of General

Statutes § 53a-134 (a) (2), and one count of attempt to

commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2).2 See State

v. Marquez, 291Conn. 122, 124, 967A.2d 56, cert. denied,

558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

At the petitioner’s criminal trial, the state presented

the testimony of the petitioner’s codefendant, Soler, as

well as the testimony of two of the surviving robbery

victims, Valle and Clement.3 Both Valle and Clement

testified that the petitioner was the gunman. Soler testified that the petitioner was the assailant who physically

struggled with and fatally shot Delgado. Additionally,

Soler testified that, at the sound of the first gunshot,

he fled the scene in fear, and then heard a second shot

while fleeing. Soler testified that he did not have an

agreement with the state to receive any benefit in

exchange for his testimony. Rather, Soler explained

that he was testifying against the petitioner because

‘‘no one was supposed to get hurt.’’ On cross-examination, he testified that he had not been offered a particular plea deal in exchange for his testimony, that he did

not know how the charges pending against him would

be resolved, and that he was testifying only because it

was the ‘‘right thing to do.’’

After Soler testified, the jury was excused, at defense
counsel’s request, so that defense counsel could inquire

of the state, through the court, whether any benefits

had been promised to Soler in exchange for his testimony. The prosecutor then explained that the state had

discussed the possibility of reducing Soler’s charges

but that no promises had been made. Originally, Soler

faced the same charges as the petitioner, which

included one count of felony murder in violation of

§ 53a-54c, multiple counts of robbery in the first degree

in violation of § 53a-134 (a) (2), and one count of conspiracy to commitrobbery in the first degree in violation

of General Statutes §§ 53a-48 and 53a-134 (a) (2). Three

months after testifying, Soler pleaded guilty to two

counts of robbery in the first degree and attempt to

commitrobbery in the first degree. He was sentenced to

a total effective sentence of twenty years incarceration,

execution suspended after nine years, followed by five

years of probation, despite the state’s request for a

longer prison sentence.

Following the petitioner’s conviction of one count of

felony murder, two counts ofrobbery in the first degree,

and one count of attempt to commit robbery in the

first degree, the trial court, Sheldon, J., sentenced the

petitioner on March 10, 2006, to a total effective sentence of fifty years incarceration, execution suspended

after thirty-five years, followed by five years of probation. On direct appeal, our Supreme Court affirmed the

judgment. State v. Marquez, supra, 291 Conn. 167.

On December 15, 2014, the petitioner filed the operative petition for a writ of habeas corpus alleging, inter

alia, that the state had violated his due process rights

and his right to a fair trial by (1) failing to disclose

favorable evidence to him in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963),4 and (2) failing to correct Soler’s allegedly false

testimony that he had not been promised any benefits

by the state in exchange for his testimony. At the habeas

trial, testimony was presented from, among others,

Edward Narus, the senior assistant state’s attorney who

had prosecuted Soler, and Soler’s defense attorney,

Margaret P. Levy. Both testified that the state had discussed possible plea deals with Soler, the essence of

which was that the state might reduce certain charges

in exchange for an agreement for him to testify against

the petitioner. This testimony established, however,

that discussions of a plea deal never progressed beyond

preliminary discussions.

In an oral ruling, the habeas court, Fuger, J., denied

the petition for a writ of habeas corpus on May 5, 2015.

The habeas court expressly based its denial on the ‘‘key

evidentiary finding’’ that there was no credible evidence

that Soler had a deal with the state to receive a benefit

in exchange for his testimony and the state, therefore,

did not commit a Brady violation by failing to disclose

such an agreement when none existed. On May 12, 2015,
the habeas court denied certification to appeal. This

appeal followed.

On appeal, the petitioner argues that the habeas court

abused its discretion by denying certification to appeal

because he presented sufficient evidence to render the

issues in this case debatable among jurists of reason.

He argues that the evidence presented establishes that

the prosecution failed to disclose that Soler had an

agreement with the state that the charges against him

would be reduced, and that he would face less time in

prison, if he cooperated with the state by testifying

against the petitioner. We disagree.

We begin by setting forth the applicable 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 [a writ

of] 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, [the petitioner] must demonstrate

that the denial of his petition for certification [to appeal]

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.’’ (Internal quotation marks

omitted.) Melendez v. Commissioner of Correction, 151

Conn. App. 351, 357, 95 A.3d 551, cert. denied, 314

Conn. 914, 100 A.3d 405 (2014). To establish an abuse

of discretion, the petitioner must ‘‘demonstrate that the

issues are debatable among jurists of reason; that a

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

orthatthe questions are adequate to deserve encouragement to proceed further.’’ (Emphasis in original; internal quotation marks omitted.) Robinson v.

Commissioner of Correction, 167 Conn. App. 809, 816,

114 A.3d 493, cert. denied, 323 Conn. 925, A.3d

(2016). ‘‘In determining whether the habeas court

abused its discretion in denying the petitioner’s request

for certification [to appeal], 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.’’(Internal quotation marks omitted.) Hines v. Commissioner

of Correction, 164 Conn. App. 712, 724, 138 A.3d 430

(2016).

‘‘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.’’(Internal quotation marks omitted.) State v. Ouellette, 295 Conn. 173, 185, 989 A.2d

1048 (2010). ‘‘[D]ue process is . . . offended if the

state, although not soliciting false evidence, allows it

to go uncorrected when it appears. . . . If a govern-
ment 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, [our case law]require[s]

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.’’ (Citations omitted;

internal quotation marks omitted.) Id., 186.

The dispositive question in this case, and the threshold question in any claimed Brady violation based on an

alleged undisclosed plea agreement with a cooperating

witness, is whetherthat agreement actually existed. See

State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000)

(‘‘[w]e first consider whether there was an undisclosed,

implied plea agreement between [the witness] and the

state’’); State v. Satchwell, 244 Conn. 547, 561, 710 A.2d

1348 (1998) (‘‘[t]he defendant, however, has failed to

establish the necessary factual predicate to his claim,

namely, that the state’s attorney did, in fact, promise

to dismiss the aiding and abetting arson murder charges

against [the witness] as part of the plea agreement

between [the witness] and the state’’). The existence

of the agreement is ‘‘a fact based claim to be determined

by the trial court, subject only to review for clear error.’’

State v. Ouellette, supra, 295 Conn. 187. ‘‘A finding of

fact will not be disturbed unless it is clearly erroneous

in view of the evidence and pleadings in the whole

record . . . .’’ (Internal quotation marks omitted.)

State v. Peterson, 320 Conn. 720, 730, 135 A.3d 686

(2016). ‘‘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.) State

v. Floyd, supra, 738. It is not enough to merely point

to evidence in the record that contradicts the habeas

court’s findings. See State v. Krijger, 313 Conn. 434,

443, 448, 97 A.3d 946 (2014).

Here, the petitioner argues that the habeas court’s

determination that no agreement existed between Soler

and the state is clearly erroneous because the record

contains ‘‘overwhelming evidence’’ that there was an

agreement, whether formal or implied. The evidence

cited by the petitioner in support of this claim can be

described fairly as plea bargaining discussions between

Soler and the state. The habeas court expressly found

Narus’ testimony to be credible. Narus testified that the

state had not reached a leniency for testimony

agreement with Soler. Rather, the plea discussions had

included discussions of possible dispositions, what

Narus referred to as ‘‘hypotheticals,’’ but ultimately the

state decided it was not prepared to enterinto a leniency
agreement with Soler. Specifically, Narus testified that

the state was not prepared to offer any kind of leniency

agreement because there was doubt about whether

Soler ultimately would agree to testify, and the state

was concerned about its ability to trust that Soler would

not lie or otherwise contradict his previous statements

to police, in which he implicated the petitioner.

Similarly, Soler’s criminal trial attorney, Levy, testified that she had hoped that Soler’s testimony and cooperation would lead to leniency from the state, but she

had no commitment from the state on which to base

this hope. Levy stated that she had no recollection of

discussing an offer of a leniency agreement with Narus

and that her notes from her representation of Soler did

not reflect that any such offer was ever made. Rather,

Levy’s hope for leniency, and the advice she provided

to Soler encouraging his cooperation, stemmed simply

from her experiences of the sentencing process as a

criminal defense attorney, which showed the state often

will inform a sentencing judge of whether a criminal

defendant assisted the state with any of its otherinvestigations or prosecutions.

The habeas court considered at length the extent to

which these discussions between Soler and the state

were simply the normal course of pretrial negotiations

between prosecutors and defendants in Connecticut.

In considering the habeas court’s conclusion that these

discussions did not constitute an agreement requiring

disclosure under Brady, we find our Supreme Court’s

decision in State v. Floyd, supra, 253 Conn. 700, to be

instructive. In Floyd, our Supreme Court concluded

that there was evidence that a key state’s witness had

engaged in discussions of favorable treatment from the

state on pending criminal charges in exchange for testimony against the defendant, but that the witness had

not yet received any commitment from the state that

his testimony would lead to a lenient sentence. Id.,

739–40. The trial court found there was documentary

evidence demonstrating a directlink between the state’s

willingness to be lenient and the quality of the witness’

testimony. Id., 739. Our Supreme Court concluded that

this did not show an agreement between the state and

the witness. Id. Rather, the witness had ‘‘[a]t most . . .

a hope for leniency.’’ Id., 740. On this basis, the court

in Floyd concluded that ‘‘a reasonable fact finder would

not be compelled to conclude that there was an implied

plea agreement between [the witness] and the state,’’

and that ‘‘the trial court’s factual finding that there was

no such implied agreement must stand.’’ Id.

After a careful review of the parties’ briefs and the

record in the present case, we conclude that the habeas

court’s determination that Soler did not have an

agreement with the state was not clearly erroneous. As

in Floyd, the evidence relied on here by the petitioner

simply shows, as the habeas court concluded, that nor-
mal plea bargaining discussions occurred and that those

discussions did not result in any agreement between

the parties. At most, Soler had a mere hope for leniency,

with no commitment from the state. Because no

agreement existed, the state did not violate its obligation to disclose favorable evidence under Brady. State

v. Ouellette, supra, 295 Conn. 186. Accordingly, we conclude the habeas court did not abuse its discretion in

denying certification to appeal because the petitioner’s

claim is not debatable among jurists of reason, a court

could not resolve the issues in a different manner, and

the questions raised do not deserve encouragement to

proceed further.5

The appeal is dismissed.

In this opinion the other judges concurred.

1 Our Supreme Court’s opinion in the petitioner’s direct appeal provides

a full exposition of the factual events underlying the criminal trial. See State

v. Marquez, 291 Conn. 122, 126–31, 967 A.2d 56, cert. denied, 558 U.S. 895,

130 S. Ct. 237, 175 L. Ed. 2d 163 (2009). Much of this information is not

relevant to the narrow issues before the court here.

2 The petitioner was acquitted of one count of robbery in the first degree.

3 Escobar, the third surviving robbery victim, did not testify at the trial

because the state could not locate him.

4

‘‘In Brady v. Maryland . . . the Supreme Court of the United States

held that the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith

of the prosecution.’’ (Internal quotation marks omitted.) State v. Guerrera,

167 Conn. App. 74, 79 n.1, 142 A.3d 447, cert. granted, 323 Conn. 922,

A.3d (2016). Our Supreme Court has held that the obligation to disclose

favorable evidence includes such evidence as to the existence of any plea

agreement between the state and a key witness. See State v. Ouellette, 295

Conn. 173, 185–86, 989 A.2d 1048 (2010).

5 Because we determine that the habeas court did not abuse its discretion

in denying certification to appeal, we do not reach the petitioner’s argument

that this court should exercise its supervisory authority to ‘‘require that the

state disclose any representation by a state’s attorney, made to a cooperating

witness, or their attorney, concerning the potential ultimate disposition of

their pending criminal case prior to testifying.’’ (Emphasis added.) We pause

only to note that such a requirement would be an exceptionally broad use

of an ‘‘extraordinary remedy’’ intended only to be used in guarding against

defects of the ‘‘utmost seriousness’’ that call into question, not just the

integrity of the trial at hand, but the entire judicial system itself. (Emphasis

in original.) State v. Marquez, supra, 291 Conn. 166 (noting our Supreme

Court exercises its supervisory authority only reluctantly and when claim

arises placing ‘‘perceived fairness of the judicial system as a whole’’ in

jeopardy [internal quotation marks omitted]).