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VICTOR AYALA v. COMMISSIONER OF CORRECTION
(AC 36739)
Lavine, Beach and Pellegrino, Js.
Argued April 6—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Steven B. Rasile, assigned counsel, for the appel-
lant (petitioner).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Rebecca A. Barry, assistant state’s
attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Victor Ayala, appeals from
the judgment of the habeas court denying his petition
for habeas corpus relief. On appeal, the petitioner
claims that the habeas court erred in not finding that his
trial counsel provided ineffective assistance by failing to
investigate and present the testimony of two witnesses.
We affirm the judgment of the habeas court.
The facts regarding the petitioner’s underlying con-
viction, as recited by this court on direct appeal, are
as follows: ‘‘On November 4, 2007, the [petitioner] twice
visited the apartment of the victim [Terry Weaver] and
her husband [Christopher Weaver]. On the first occa-
sion, the [petitioner] knocked on the door and the victim
allowed him to enter and search her residence for his
girlfriend [Marilyn Lozada, also known as Chena]. Later
that night, the [petitioner] returned to the [Weavers’]
residence and, unbeknownst to [the victim], waited out-
side, hidden from the view of the door’s peephole, until
the victim opened the door to get some air. When she
opened the door, the [petitioner] pushed his way into
the apartment and stuck what she described as a black
handgun into her stomach, threatened to kill her and
inquired about the whereabouts of his girlfriend. The
victim informed the [petitioner] that his girlfriend was
not at her residence, at which time the [petitioner]
pushed her and demanded that she sit on the couch.
The [petitioner] then searched the residence for his
girlfriend, and when he was unable to find her, he left
the residence.
‘‘The victim then called the police to report the inci-
dent. Special weapons and tactical unit members
responded to the call and searched the [Weavers’] resi-
dence. Local patrol officers also arrived on the scene
and questioned the victim about the [petitioner]. She
provided the officers with the [petitioner’s] name and
his physical description. The victim also dictated and
signed a statement for the police regarding the incident.
The police then searched the vicinity for the [peti-
tioner]. After locating him, they conducted a one-on-
one identification [procedure] whereby the victim was
asked to look at the [petitioner] and determine if he
was the person who committed the alleged crimes at
her residence. The victim positively identified the [peti-
tioner] as the individual who had entered her residence
[in the early hours of] that morning.
‘‘The [petitioner] subsequently was arrested and
charged in a six count information with burglary in the
second degree with a firearm in violation of [General
Statutes] § 53a-102a (a), burglary in the first degree in
violation of [General Statutes] § 53a-101 (a) (3), kidnap-
ping in the second degree with a firearm in violation
of [General Statutes] § 53a-94a (a), threatening in the
second degree in violation of [General Statutes] § 53a-
62 (a) (1) and interfering with an officer in violation of
[General Statutes] § 53a-167a (a). After the [petitioner’s]
arrest, the victim and her husband signed statements
recanting their allegations against the [petitioner].
When questioned at trial, however, they testified that
they signed those statements due to pressure from the
[petitioner’s] girlfriend and asserted that the victim’s
initial statement to the police and her husband’s testi-
mony at trial were the truthful account of the incident.
After trial, the [petitioner] was convicted on all counts
and was sentenced to a total effective term of fourteen
years of incarceration.’’ (Footnotes omitted.) State v.
Ayala, 133 Conn. App. 514, 516–17, 36 A.3d 274, cert.
denied, 304 Conn. 913, 40 A.3d 318 (2012). The petition-
er’s conviction was affirmed on direct appeal. Id., 526.
The petitioner filed an amended petition for a writ
of habeas corpus on September 25, 2013. Following a
trial, the habeas court issued a memorandum of deci-
sion denying the amended petition. The habeas court
granted the petition for certification. This appeal
followed.
‘‘Our review of the judgment of the habeas court is
carefully circumscribed. The underlying historical facts
found by the habeas court may not be disturbed unless
the findings were clearly erroneous. . . . Whether the
representation a [petitioner] received . . . was consti-
tutionally inadequate is a mixed question of law and
fact. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Vivo v.
Commissioner of Correction, 90 Conn. App. 167, 173,
876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d
1253 (2005).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong.’’ (Internal
quotation marks omitted.) Santaniello v. Commis-
sioner of Correction, 152 Conn. App. 583, 587–88, 99
A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d 1115
(2014). ‘‘The first component of the Strickland test,
generally referred to as the performance prong, requires
that the petitioner show that counsel’s representation
fell below an objective standard of reasonableness.
. . . In Strickland, the United States Supreme Court
held that [j]udicial scrutiny of counsel’s performance
must be highly deferential. It is all too tempting for a
[petitioner] to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense, after it has
proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. . . .
‘‘Even if a petitioner shows that counsel’s perfor-
mance was deficient, the second prong, or prejudice
prong, requires that the petitioner show that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Martinez v. Commissioner of Correction, 147 Conn.
App. 307, 313–14, 82 A.3d 666 (2013), cert. denied, 311
Conn. 917, 85 A.3d 652 (2014). ‘‘In making [the preju-
dice] determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before
the judge or the jury. . . . [A] verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelm-
ing record support. . . . [T]he ultimate focus of inquiry
must be on the fundamental fairness of the proceeding
whose result is being challenged. . . . The benchmark
for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial can-
not be relied on as having produced a just result.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Sanchez v. Commissioner of Correction, 314 Conn. 585,
606–607, 103 A.3d 954 (2014).
The petitioner claims that the habeas court erred
in finding that he failed to demonstrate that he was
prejudiced by his counsel’s performance. He first argues
here, as he did in the habeas court, that his trial counsel
was ineffective for failing to investigate and to present
the testimony of two witnesses, the petitioner’s brother
Fernando Ayala (Fernando), and Jesus Gonzalez. The
petitioner asserted that these witnesses could have pro-
vided to the jury evidence that he resided at the Weav-
ers’ apartment.1 The petitioner argues that his residency
at the scene of the crime would have defeated the ele-
ment of unlawful entry, common to both burglary
counts.2 Additionally, the petitioner argues that the tes-
timony of Gonzalez and Fernando could have served
to discredit all of the Weavers’ testimony.
The respondent, the Commissioner of Correction,
argues that the habeas court correctly concluded that
it was not reasonably probable that the testimony of
Fernando and Gonzalez would have affected the out-
come of the petitioner’s trial.3 The respondent argues
that the testimony of Fernando and Gonzalez would
have merely echoed Katherine Campbell’s testimony,4
and the jury would have found them less credible than
Campbell because of kinship and criminal records.5
Additional facts are helpful to the resolution of this
claim. The habeas court determined that at the time of
the petitioner’s arrest, he was found by police in a
stairwell of an apartment building on Cedar Street in
Meriden, a few blocks from the Weavers’ apartment.
He was wearing his coat inside out, and he held a ban-
dana and a cap in his hand. When confronted by the
police, the petitioner gave a false name and birth date,
denied that he had been in the Weavers’ apartment
building that night, and explained that he had been
visiting a friend in the Cedar Street building, but could
not remember the friend’s name or apartment number.6
At the underlying criminal trial, Terry Weaver testi-
fied that Lozada had been living in the apartment in
exchange for crack cocaine. According to Weaver, the
petitioner occasionally stayed in the apartment with
Lozada, but he did not have a key, and Lozada had
vacated the apartment a few days before the incident.
Trial counsel presented one defense witness at the
underlying criminal trial, Campbell, the petitioner’s
friend. She testified at the criminal trial that she had
either picked up or dropped off the petitioner in front
of the Weavers’ apartment building three or four times,
including once about one week before the incident, but
that she never entered the building herself.
Fernando testified at the habeas trial: that he fre-
quently stopped by the Weavers’ apartment to see the
petitioner, sometimes unannounced; that the petitioner
had a key that he used to enter the apartment;7 that the
Weavers never seemed surprised to see them; that he
and the petitioner would spend time in the petitioner’s
bedroom; that he sometimes paid the petitioner’s rent
to the Weavers, in either cash or drugs; and that the last
time he had picked up the petitioner from the apartment
was about one and one-half days before the incident.
He also testified that, although the bed and sofa in the
petitioner’s bedroom did not belong to the petitioner,
he kept several of his possessions there, including a
small television, a nightstand, clothing, and some per-
sonal items. Fernando picked up these possessions
from the Weavers’ apartment a few months after the
petitioner’s arrest. Gonzalez testified at the habeas trial
that he visited the petitioner three times at the Weavers’
apartment, and stayed overnight once.
The habeas court concluded that the petitioner had
not met his burden to prove prejudice under Strickland
regarding the potential testimony of Fernando and Gon-
zalez.8 The court concluded that the testimony of Fer-
nando and Gonzalez would have been only ‘‘peripherally
inconsistent’’ with that of the Weavers. The habeas
court did not explicitly find the testimony of Fernando
and Gonzalez credible.9
We agree with the habeas court that even if the testi-
mony of Fernando and Gonzalez had been presented
at the petitioner’s criminal trial, there was not a reason-
able probability that the result of the proceeding would
have been different; our confidence in the outcome has
not been undermined. The case against the petitioner
was fairly strong. The state presented two eyewitnesses,
the Weavers, who knew the petitioner, called the police,
positively identified him, and testified against him at
trial. There was evidence that the petitioner had lied
to the police and had attempted to disguise his appear-
ance at the time of his arrest.
The petitioner’s putative witnesses would not have
aided his defense significantly. The differences between
the testimony of Fernando and Gonzalez at the habeas
trial and the testimony of the Weavers and Campbell
at the underlying criminal trial were minor and largely
reconcilable. As the habeas court aptly stated,
‘‘Although the Weavers denied that the petitioner was
given a key to their apartment, the petitioner could have
received the key, or a copy, from Lozada. The visits by
[Fernando and Gonzalez] to the apartment [are] com-
patible with the Weavers’ version that the petitioner
occasionally stayed at the apartment with his girl-
friend.’’ Casual permission to stay with Lozada is differ-
ent from authority to enter and remain in the premises
as a matter of right, and whether the petitioner had
ever paid rent in some fashion is not dispositive. Neither
of the putative witnesses would have established that
the petitioner had the right to be on the premises at
the time of the crime. Even if he had been a frequent
guest, either of the Weavers or of Lozada, he was not
there as a matter of right, and he could still be found
guilty of burglary. See generally State v. Stagnitta, 74
Conn. App. 607, 612, 615, 813 A.2d 1033 (‘‘To enter
unlawfully means to accomplish an entry by unlawful
means, while to remain unlawfully means that the initial
entering of the building . . . was lawful but the pres-
ence therein became unlawful because the right, privi-
lege or license to remain was extinguished. When either
of these situations is established, the threshold element
of burglary is present. . . . A license in real property
is defined as a personal, revocable, and unassignable
privilege, conferred either by writing or parol, to do one
or more acts on land without possessing any interest
therein. . . . Generally, a license to enter premises is
revocable at any time by the licensor. . . . It is exercis-
able only within the scope of the consent given. . . .
The phrase, licensed or privileged, as used in General
Statutes § 53a-100 [b] is meant as a unitary phrase,
rather than as a reference to two separate concepts.’’
[Citations omitted; emphasis in original; internal quota-
tion marks omitted.]), cert. denied, 263 Conn. 902, 819
A.2d 838 (2003).
Furthermore, the Weavers were cross-examined at
the underlying criminal trial regarding their extensive
drug use, criminal activity, and recantation of their origi-
nal statements. The jury believed the Weavers’ testi-
mony. Additional testimony regarding the petitioner’s
residency, indirect in any event, would most likely not
have swayed the jury to disbelieve the whole of the
Weavers’ testimony. We conclude that there is not a
reasonable probability that the testimony of Fernando
and Gonzalez would have altered the jury’s verdict, and
our confidence in the verdict is not undermined. The
habeas court did not err in concluding that the peti-
tioner was not prejudiced by his trial counsel’s per-
formance.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also argued in the habeas court that his trial counsel was
ineffective for failing to investigate and to present the testimony of his
girlfriend, Lozada, who could also have testified about his residency. The
habeas court found that trial counsel attempted to locate Lozada personally
and through an investigator, and spoke to her on the telephone. Lozada was
not called as a witness at the habeas trial, and her whereabouts were
unknown. The habeas court concluded that the petitioner had not met
his burden to prove deficient performance or prejudice under Strickland
regarding Lozada. The petitioner does not challenge these conclusions on
appeal.
2
The petitioner was convicted of burglary in the second degree with a
firearm in violation of § 53a-102a (a), and burglary in the first degree in
violation of § 53a-101 (a) (3). Burglary in the second degree with a firearm
incorporates the definition of burglary in the second degree, which appears
in General Statutes § 53a-102 (a) and provides: ‘‘A person is guilty of burglary
in the second degree when such person enters or remains unlawfully in
a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein.’’ (Empha-
sis added.)
Section 53a-101 (a), defining burglary in the first degree, states in relevant
part: ‘‘A person is guilty of burglary in the first degree when . . . (3) such
person enters or remains unlawfully in a dwelling at night with intent to
commit a crime therein.’’ (Emphasis added.)
3
The habeas court did not make an express finding regarding performance.
Rather, the court focused on whether there was any prejudice, that is,
whether the additional evidence would have mattered.
4
Campbell was, according to the habeas court, a ‘‘friend’’ of the petitioner
who helped him with applications for assistance and ‘‘getting to
appointments.’’
5
The respondent argues for affirmance on the alternative ground that
neither Fernando nor Gonzalez testified at the habeas trial that he would
have testified at the criminal trial. There was testimony at the habeas trial
that Fernando was in a residential drug treatment program and Gonzalez
was incarcerated at the time of the petitioner’s criminal trial. Testimony at
trial may have implicated them in drug transactions, at a time when prosecu-
tion was not barred by a statute of limitations. The habeas court made no
findings in this regard, and we decline to address the argument.
6
The police asked the petitioner about a handgun, and the petitioner
replied that it was a can opener. A search of the Cedar Street building led
to the seizure of a paint can opener. No gun was ever found. State v. Ayala,
supra, 133 Conn. App. 516 n.2.
7
The habeas court found that the petitioner agreed with the testimony
of Terry Weaver, that he did not have a key to the apartment.
8
The habeas court noted that even if the petitioner had been renting a
room from the Weavers on the evening of November 4, 2007, his entrance
into the Weavers’ bedroom would not have been lawful.
General Statutes § 53a-100 (a) provides in relevant part: ‘‘The following
definitions are applicable to this part: (1) ‘Building’ . . . . [w]here a building
consists of separate units, such as, but not limited to separate apartments,
offices or rented rooms, any unit not occupied by the actor is, in addition
to being a part of such building, a separate building . . . .’’
According to the Weavers, the petitioner had searched their bedroom in
his search for Lozada, and there was no evidence that he was authorized
to enter that room.
9
The habeas court also noted that it disbelieved the petitioner’s version
of events, which included the two uneventful visits to the Weavers’ apartment
the night of November 4, 2007, but the petitioner failed to explain why
the Weavers would concoct their story, why he attempted to disguise his
appearance immediately before his arrest, why he gave a false name and
birth date, and why he lied to the police.