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JOSE MELENDEZ v. COMMISSIONER
OF CORRECTION
(AC 34463)
Beach, Keller and Pellegrino, Js.
Argued March 12—officially released July 1, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Christopher DeMatteo, assigned counsel, for the
appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Jose Melendez, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his revised, amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying his petition
for certification to appeal, and (2) improperly deter-
mined that his trial counsel, Glenn M. Conway (coun-
sel), provided effective assistance. We conclude that
the court properly denied certification to appeal and,
accordingly, we dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to this appeal. In the fall of 2004, the federal Drug
Enforcement Agency (DEA) and the statewide narcot-
ics task force conducted a joint investigation into
alleged narcotics trafficking at the Fireside Restaurant
in New Haven. As part of that investigation, investiga-
tors used a then confidential source, Jose Franco, to
make controlled buys of narcotics at the restaurant.
Franco was outfitted with a surveillance device
designed to capture audio and video of any drug transac-
tions, and to transmit wirelessly the audio and video
to a nearby surveillance vehicle where the transmission
would be recorded onto an eight millimeter videotape.
Two of Franco’s recorded controlled buys involved
exchanges with the petitioner. On October 8, 2004,
Franco entered the restaurant with $100, provided to
him by the investigators, and instructions to attempt to
purchase narcotics from anyone who was selling them.
While in the restaurant’s restroom, Franco encountered
the petitioner, who he knew was a drug dealer. Franco
told the petitioner that he wanted to purchase some
cocaine. The petitioner gave Franco a small bag con-
taining white powder in exchange for $20. After making
the purchase, Franco left the restaurant and immedi-
ately met with the investigators, who took the remaining
$80 along with the bag containing white powder that
Franco had purchased from the petitioner. The powder
later field tested positive for cocaine. On October 14,
2004, a substantially similar transaction occurred
between Franco and the petitioner in the restaurant’s
restroom, where Franco again purchased from the peti-
tioner a $20 bag of white powder that field tested posi-
tive for cocaine.
The petitioner was arrested on December 17, 2004,
and charged with various narcotics offenses. In April
or May, 2005, counsel for the petitioner was permitted
to view the eight millimeter videotape on which the
two transactions originally were recorded. In Decem-
ber, 2005, DEA investigators provided a copy of the
eight millimeter videotape to the state, and the state
immediately provided a copy to counsel.
At a pretrial hearing on December 21, 2005, the parties
and the trial court discussed the status of the case,
including ongoing plea negotiations. Counsel informed
the court that the petitioner himself had not yet viewed
the video of the transactions on October 8 and 14, 2004,
and arrangements were made for the petitioner to view
the video that same day.1 The assistant state’s attorney
indicated that the state had not yet revealed the identity
of its confidential source and explained to the petitioner
that the state’s outstanding initial plea offer of ‘‘five
years flat to serve’’ would be withdrawn immediately
if the state was required to disclose the confidential
source’s identity to the petitioner. At that same time,
the assistant state’s attorney told the petitioner that if
he wanted to enter a plea after the state disclosed the
confidential source’s identity, he would have to enter
an ‘‘open’’ guilty plea, whereby the sentence would be
imposed in the discretion of the court. The assistant
state’s attorney indicated to the petitioner that, in light
of the charges pending, the sentence would likely fall
somewhere between a minimum of eight years incarcer-
ation and a maximum of twenty-five years incar-
ceration.
Sometime after viewing a video home system (VHS)
videotape made from the eight millimeter video footage
of the October 8 and 14, 2004 transactions, the petitioner
rejected the state’s initial plea offer of five years to
serve and elected to proceed to trial. The state then
advised the petitioner of Franco’s identity. Following
jury selection, the state provided the petitioner with a
digital video disc (DVD) that, according to the state,
had been created from the original eight millimeter
videotape of the October 8 and 14, 2004 transactions.
The DVD contained eight separate video segments, four
that depicted the transaction of October 8 and four that
depicted the transaction of October 14. Of the four
video segments for each transaction, one was an exact
duplicate of the surveillance footage without any modi-
fications, one contained the same footage slowed to
10 percent of normal speed, one comprised enhanced
footage at normal speed, and one contained enhanced
footage slowed to 10 percent of normal speed. Upon
receiving the DVD, the petitioner made an oral motion
for specific performance of the last plea offer extended
by the state prior to the disclosure of Franco’s identity
and the DVD, that is, the arrangement whereby the
petitioner would enter an ‘‘open’’ guilty plea and be
subject to a term of incarceration between eight and
twenty-five years.2 The court, Levin, J., denied the
motion, finding that counsel previously was afforded
the opportunity to review the same videotape the state
used to make the DVD, and that both the videotape and
the DVD depicted the same transactions.
The case proceeded to trial, and the petitioner was
found guilty by a jury of two counts of sale of narcotics
by a person who is not drug-dependent in violation of
General Statutes § 21a-278 (b), and two counts of sale
of narcotics within 1500 feet of a licensed day care
center in violation of General Statutes § 21a-278a (b).
The trial court rendered judgment in accordance with
the jury verdict and sentenced the petitioner to a total
effective term of thirty years incarceration. Our
Supreme Court affirmed the petitioner’s conviction.
State v. Melendez, 291 Conn. 693, 719, 970 A.2d 64
(2009).
The petitioner filed a revised, amended petition for
a writ of habeas corpus, alleging that counsel rendered
ineffective assistance during the pretrial proceedings
and the trial of the case. The petitioner’s primary claims,
and those relevant to this appeal, related to counsel’s
investigation and advice regarding the state’s initial plea
offer of five years to serve.3 The habeas court viewed
the various video recordings—the eight millimeter vid-
eotape, the VHS tape viewed by the petitioner, and the
enhanced DVD—depicting the transactions between
Franco and the petitioner, and noted that ‘‘these video-
tapes are all incriminating . . . regardless of their qual-
ity.’’ The court, Cobb, J., in an oral memorandum of
decision, then concluded that the petitioner had failed
to demonstrate that counsel’s performance was defi-
cient and, accordingly, denied the petition for a writ of
habeas corpus.4 See Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There-
after, the petitioner requested certification to appeal.
The court denied that petition. This appeal followed.
‘‘In a habeas appeal, although this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary. . . . 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 satis-
fying 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 constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, 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.’’ (Emphasis
added; internal quotation marks omitted.) Osuch v.
Commissioner of Correction, 111 Conn. App. 135, 137,
957 A.2d 887, cert. denied, 289 Conn. 957, 961 A.3d
420 (2008). ‘‘In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . [and] [r]eversal is required only where an
abuse of discretion is manifest or where injustice
appears to have been done.’’ (Internal quotation marks
omitted.) Perry v. Commissioner of Correction, 131
Conn. App. 792, 796, 28 A.3d 1015, cert. denied, 303
Conn. 913, 32 A.3d 966 (2011).
‘‘To prevail on a claim of ineffective assistance of
counsel, a habeas petitioner generally must show that
counsel’s performance was deficient and that the defi-
cient performance prejudiced the defense. See Strick-
land v. Washington, [supra, 466 U.S. 687].’’ (Internal
quotation marks omitted.) Perry v. Commissioner of
Correction, supra, 131 Conn. App. 796. ‘‘[E]ffective
assistance of counsel includes counsel’s informed opin-
ion as to what pleas should enter.’’ (Internal quotation
marks omitted.) Ebron v. Commissioner of Correction,
120 Conn. App. 560, 572, 992 A.2d 1200 (2010), rev’d in
part on other grounds, 307 Conn. 342, 53 A.3d 983
(2012), cert. denied sub nom. Arnone v. Ebron, U.S.
, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013); see also
Copas v. Commissioner of Correction, 234 Conn. 139,
154, 662 A.2d 718 (1995) (‘‘[A]lmost every criminal
defendant is faced with the crucial decision of whether
to plead guilty or proceed to trial. Although this decision
is ultimately made by the defendant, the defendant’s
attorney must make an informed evaluation of the
options and determine which alternative will offer the
defendant the most favorable outcome.’’).
The petitioner claims that his counsel provided inef-
fective assistance because he did not inform the peti-
tioner of information that would have led him to accept
the favorable five year plea offer—that is, the petitioner
claims that counsel did not tell him that the original
eight millimeter videotape, which he had viewed earlier,
contained more incriminating footage than the edited
VHS videotape that counsel and the petitioner viewed
in December, 2005. The petitioner claims that counsel
also provided ineffective assistance by failing to investi-
gate adequately the video evidence in the state’s posses-
sion—that is, counsel erred in not verifying that the
videotape the petitioner viewed in December, 2005, was
an exact copy of the original eight millimeter videotape
and/or erred in not notifying the petitioner that the
video he was shown in December, 2005, was incomplete
because it did not depict the drugs for money exchange
contained in the original eight millimeter videotape.
After a thorough review of the record and briefs, we
agree with the habeas court that counsel’s investigation
into the video evidence was adequate and reasonable
and that counsel effectively provided the petitioner with
adequate information and advice upon which the peti-
tioner could make an informed decision as to whether
he should accept the state’s initial five year plea offer.
The court’s conclusion that counsel provided effective
assistance is supported by evidence in the record estab-
lishing that: (1) counsel viewed the original eight milli-
meter videotape, which depicted evidence
incriminating the petitioner, and advised the petitioner
of its incriminating nature; (2) counsel spoke with the
petitioner regarding the plea offer on numerous occa-
sions, and explained to the petitioner the elements of
the crimes he was charged with and the strength of
the state’s case in relation to available and potentially
available evidence, including the effect of potential tes-
timony by Franco and the videotape’s ability to corrobo-
rate that testimony; and (3) counsel specifically advised
the petitioner to accept the plea offer. That the peti-
tioner chose to draw his own conclusions as to the
likelihood that Franco would testify, the credibility of
Franco’s testimony, and the incriminating nature of the
video evidence depicting the transactions between
Franco and the petitioner, does not alter our conclusion
that counsel’s assistance was effective.5
The petitioner has not demonstrated that the issues
he has raised in the petition for certification to appeal
are debatable among jurists of reason, that a court could
resolve those issues differently or that the questions
raised 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. Consequently, we conclude that the peti-
tioner has failed to demonstrate that the court abused
its discretion in denying his petition for certification to
appeal. See, e.g., Coleman v. Commissioner of Correc-
tion, 108 Conn. App. 836, 838, 949 A.2d 536, cert. denied,
289 Conn. 913, 957 A.2d 876 (2008).
The appeal is dismissed.
1
The court explained to the petitioner that he would be permitted to view
a copy of the videotape then in possession of the state, but that the state
might be able to obtain a videotape of better quality for trial.
2
On direct appeal from his criminal conviction, the petitioner claimed
that ‘‘the state’s allegedly tardy disclosure of the DVD violated his federal
due process right to what he characterizes as a ‘meaningful’ plea bargain.
The remedy to which the [petitioner] claim[ed] he [was] entitled for this
alleged constitutional violation [was] the opportunity to accept the last plea
offer that the state extended to him, that is, a plea arrangement pursuant
to which the [petitioner] would receive a sentence ‘in the eight to twenty-
five year range.’ ’’ (Footnote omitted.) State v. Melendez, 291 Conn. 693,
703–704, 970 A.2d 64 (2009). Our Supreme Court held that the petitioner’s
claim lacked merit.
Here, the petitioner claims ineffective assistance of counsel regarding the
state’s initial plea offer of five years to serve. The remedy to which the
petitioner now claims he is entitled is the opportunity to accept the state’s
initial plea offer of five years to serve.
3
The petitioner claimed, among other reasons, that counsel provided
ineffective assistance because (1) counsel failed to investigate the charges
brought against the petitioner, (2) at the time when the petitioner was
considering whether to plead guilty or to go to trial, counsel failed to provide
the petitioner with information regarding the incriminating nature of the
original eight millimeter videotape, which counsel viewed several months
earlier, (3) counsel failed to revisit and to review carefully the videotape,
which showed the petitioner engaged in a sale with Franco so that counsel
could provide the petitioner with more accurate information regarding his
´
possible exposure if he went to trial vis-a-vis entering a plea agreement,
and (4) counsel failed to advise and to counsel the petitioner adequately
regarding the state’s plea offers.
4
The habeas court concluded that ‘‘the petitioner [did] not [meet] his
burden to prove that [counsel’s] advice regarding the plea offer of five years
fell below [the objective standard of reasonableness], either with respect
to the investigation or with respect to the actual advice provided.’’ The
habeas court’s conclusion that counsel’s investigation was effective was
based on its finding that counsel had viewed ‘‘the eight millimeter [video-
tape], which was the original tape, and that, from all accounts, was incrimi-
nating evidence,’’ and explained the incriminating nature of that videotape to
the petitioner. The habeas court’s conclusion that counsel provided effective
assistance upon which the petitioner could make an informed decision as
to whether to accept the plea offer was based on its findings that (1) counsel
had spoken to the petitioner about the five year plea offer on a ‘‘number
of occasions,’’ ‘‘specifically recommended to the petitioner that he accept
the five year offer,’’ and ‘‘advised the petitioner that if he rejected it, it would
be withdrawn if the state revealed the name of the cooperating witness and
would not be revived,’’ and (2) counsel explained to the petitioner that ‘‘if
the state revealed the name of the confidential witness . . . that would be
a signal that the confidential witness would be available to testify against
the petitioner at trial . . . [and] [i]f the confidential witness testified against
the petitioner at trial, the video would also come in, and the petitioner
would likely be convicted.’’
5
The habeas court found: ‘‘Although the petitioner wishes the [habeas
court] to focus all its energies on this video evidence, the focus of . . .
[counsel’s] pretrial discussions with the petitioner and on the case generally
was on the confidential informant . . . Franco, and whether or not he would
testify at trial . . . and what, in fact, he would say. While the video was
important, it was merely corroborating of the testimony of [Franco]. And
. . . [counsel] testified that in his experience, if the state did not wish to
reveal the cooperating witness or the cooperating witness would not be
available for testimony, that the case would be nolled or dismissed, and the
state would not pursue it. . . . [Counsel] . . . had defended many defen-
dants in drug sale cases in New Haven . . . [and] was very familiar with
how the state handled [drug sale cases] and how offers were viewed when
cooperating witnesses or confidential informants were involved. . . .’’
The habeas court further found that the petitioner, after viewing the video,
rejected the plea offer ‘‘not because he did not believe the tape incriminated
him, as he said [in his testimony before the habeas court], but rather because
he believed that the cooperating witness would be too afraid to be identified
and [to] testify at trial, and, therefore would not appear. If he didn’t appear
to testify, the case would be nolled or dismissed. The petitioner’s gamble
did not pay off. . . . The petitioner now claims that he was not properly
advised regarding the plea offer of five years.’’