Saez v. Commissioner of Correction

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 ARNALDO SAEZ v. COMMISSIONER OF
CORRECTION
(AC 37451)
Beach, Mullins and Mihalakos, Js.
Argued May 10—officially released September 13, 2016

(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).
 Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
Lisamaria T. Proscino, special deputy assistant state’s
attorney, for the appellee (respondent).
 Opinion

BEACH, J. Following the habeas court’s denial of
his amended petition for a writ of habeas corpus, the
petitioner, Arnaldo Saez, appeals from the judgment of
the court denying his petition for certification to appeal.
On appeal, the petitioner claims that the court abused
its discretion by denying his petition for certification
to appeal on the following grounds: (1) his trial counsel
rendered ineffective assistance in the presentation of
the petitioner’s self-defense claim; and (2) the habeas
court improperly prohibited the petitioner from testi-
fying that he was the victim of attacks prior to commit-
ting the homicide of which he was convicted. We
conclude that the court did not abuse its discretion in
denying the petition for certification to appeal, and,
accordingly, we dismiss the appeal.
The record reveals the following relevant factual and
procedural history. At the petitioner’s criminal trial, the
state presented evidence that in the early morning of
July 3, 1994, the petitioner had been a passenger in a
van traveling on Benton Street in Hartford. Upon seeing
the victim, Lazaro Rodriguez, and Janette Reyes, a
friend of both the petitioner and the victim, walking
along the street, the petitioner yelled out, ‘‘Who own
the street?’’ Reyes assumed the petitioner was joking
and responded that she did. The petitioner asked the
question again, but this time he directed it to the victim.
The victim replied, ‘‘What do you mean?’’ The victim
approached the van, and according to Reyes, the peti-
tioner punched the victim in the face. The victim
punched the petitioner back.
During the ensuing fight between the victim and the
petitioner, the petitioner withdrew a knife from his
pocket and stabbed the victim. The victim raised his
arm to protect himself and jumped backward to get
away from the petitioner. After continuing to stab him
in the chest area, the petitioner told the victim, ‘‘You
dead man. You dead.’’ The petitioner got back into the
van and left the scene. The victim died.
The petitioner fled to New York and ultimately was
apprehended in California two months later. As he
awaited trial, the petitioner informed his cellmate that
on the night of the murder he had been at a bar and
was ‘‘looking to get out and take someone out.’’ He told
the cellmate that he had thought he was losing the
fight when he took out his knife and began stabbing
the victim.
On February 5, 1997, following a trial before a three
judge panel, the petitioner was convicted of one count
of murder in violation of General Statutes § 53a-54a.
He thereafter was sentenced to fifty years incarceration.
The petitioner filed an appeal from his conviction,
but he did not pursue the appeal and it was dismissed
mission to withdraw pursuant to Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)
(establishing procedure by which appointed counsel
may withdraw from criminal appeal on ground of frivo-
lousness). On July 18, 2014, the petitioner filed an
amended petition for a writ of habeas corpus, alleging
ineffective assistance of trial counsel. On October 30,
2014, in an oral decision, the habeas court denied the
petition. On November 12, 2014, the court denied the
petitioner’s petition for certification to appeal. The pre-
sent appeal followed.
We begin by setting forth our standard of review
following the denial of certification to appeal from the
denial of a petition for a writ of habeas corpus. ‘‘Faced
with a habeas court’s denial of a petition for certifica-
tion 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 certifica-
tion 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 encourage-
ment 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 presump-
tion 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 injus-
tice appears to have been done.’’ (Internal quotation
marks omitted.) Wilson v. Commissioner of Correc-
tion, 150 Conn. App. 53, 56–57, 90 A.3d 328, cert. denied,
312 Conn. 918, 94 A.3d 641 (2014).
‘‘Finally, we note that [t]he conclusions reached by
the [habeas] court in its decision to dismiss [a] habeas
petition are matters of law, subject to plenary review.
. . . [When] the legal conclusions of the court are chal-
lenged, [the reviewing court] must determine whether
they are legally and logically correct . . . and whether
they find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Misenti v. Com-
missioner of Correction, 165 Conn. App. 548, 559,
A.3d (2016).
I
The petitioner argues that the habeas court erred in
rejecting his claim that his trial counsel was ineffective
in the presentation of the petitioner’s claim of self-
defense by advising him not to testify and by failing to
offer photographic evidence tending to impeach a key
witness for the prosecution. We disagree.
‘‘In order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi-
cally, the claim must be supported by evidence estab-
lishing that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . . Because both
prongs of Strickland must be demonstrated for the
petitioner to prevail, failure to prove either prong is
fatal to an ineffective assistance claim. . . . In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Atkins v. Commis-
sioner of Correction, 158 Conn. App. 669, 675, 120 A.3d
513, cert. denied, 319 Conn. 932, 125 A.3d 206 (2015).
Specifically, the petitioner argues that trial counsel
was ineffective in the presentation of the petitioner’s
self-defense claim because he did not introduce certain
evidence, namely, testimony of the petitioner and pho-
tographic evidence of lighting conditions at the time of
the victim’s murder.
‘‘In order sufficiently to raise self-defense, a defen-
dant must introduce evidence that the defendant rea-
sonably believed his adversary’s unlawful violence to be
‘imminent’ or ‘immediate.’. . . [A] person can, under
appropriate circumstances, justifiably exercise
repeated deadly force if he reasonably believes both
that his attacker is using or is about to use deadly force
against him and that deadly force is necessary to repel
such attack.’’ (Citation omitted.) State v. Carter, 232
Conn. 537, 545–46, 656 A.2d 657 (1995). ‘‘A defendant
who acts as an initial aggressor is not entitled to the
protection of the defense of self-defense. . . . The ini-
tial aggressor is the person who first acts in such a
manner that creates a reasonable belief in another per-
son’s mind that physical force is about to be used based
upon that other person.’’ (Citations omitted.) State v.
Skelly, 124 Conn. App. 161, 167–68, 3 A.3d 1064, cert.
denied, 299 Conn. 909, 10 A.3d 526 (2010).
A
The petitioner first argues that trial counsel should
have advised him to testify because such testimony
was the only way to establish that the petitioner: (1)
subjectively believed that, during his fight with the vic-
tim, the victim was using or about to use deadly force;
(2) reasonably believed that deadly force was necessary
under the circumstances; and (3) could not have
retreated with complete safety from the victim.
‘‘It is axiomatic that [i]t is the right of every criminal
defendant to testify on his own behalf . . . and to make
that decision after full consideration with trial counsel.
. . . [A]lthough the due process clause of the [f]ifth
[a]mendment may be understood to grant the accused
the right to testify, the if and when of whether the
accused will testify is primarily a matter of trial strategy
to be decided between the defendant and his attorney.’’
(Internal quotation marks omitted.) Coward v. Com-
missioner of Correction, 143 Conn. App. 789, 799, 70
A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).
‘‘[T]he presentation of testimonial evidence is a matter
of trial strategy. . . . The failure of defense counsel to
call a potential defense witness does not constitute
ineffective assistance unless there is some showing that
the testimony would have been helpful in establishing
the asserted defense.’’ (Internal quotation marks omit-
ted.) Adorno v. Commissioner of Correction, 66 Conn.
App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn.
943, 786 A.2d 428 (2001). ‘‘[T]here is a strong presump-
tion that the trial strategy employed by a criminal defen-
dant’s counsel is reasonable and is a result of the
exercise of professional judgment . . . .’’ (Internal
quotation marks omitted.) Dunkley v. Commissioner
of Correction, 73 Conn. App. 819, 825, 810 A.2d 281
(2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion 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 omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time.’’ (Internal quotation marks
omitted.) Boyd v. Commissioner of Correction, 130
Conn. App. 291, 297, 21 A.3d 969, cert. denied, 302 Conn.
926, 28 A.3d 337 (2011).
The record reveals the following additional facts.
During the criminal trial, defense counsel introduced a
statement made by the petitioner to the Los Angeles
Police Department when he finally was apprehended.
The statement contained the petitioner’s account of
what had occurred on the morning of the murder, and
it generally was consistent with the self-defense theory
the petitioner presented at trial and supported the peti-
tioner’s proposition that he had not been the initial
aggressor in the confrontation with the victim.1 The
statement does not include an express reference to the
petitioner’s state of mind during the confrontation with
the victim.2
The habeas court concluded that the evidence pre-
sented by the petitioner was ‘‘woefully lacking in trying
to prove any ineffective assistance . . . .’’ It further
rejected the petitioner’s claims, noting that ‘‘[t]he only
thing that could be potentially considered evidence that
wasn’t presented to the three judge panel, was the self-
serving testimony presented by [the petitioner].’’ The
court expressly found that the petitioner’s testimony
was ‘‘less than fully believable’’ and that he ‘‘demon-
strated evasiveness.’’ These credibility determinations
as well as other evidence in the record overcome the
petitioner’s assertion on appeal that his testimony at
trial ‘‘would have strongly supported his defense.’’
At the habeas trial, the petitioner’s trial counsel testi-
fied that he had had several tactical reasons for advising
the petitioner not to testify on his own behalf: (1) the
petitioner would have come ‘‘across as a street hustler’’
to the jury, (2) the petitioner’s statement to the Los
Angeles Police Department had been admitted into evi-
dence, and (3) there would be ‘‘some impeachment as
to [the petitioner’s] record’’ regarding the petitioner’s
gang involvement. Nevertheless, the petitioner argues
that counsel should have advised him to testify. The
petitioner claims that he would have testified as to
relevant subjects not addressed in the statement he
had made to the Los Angeles Police Department. The
subjects include his subjective belief that the victim
was about to use deadly force, that this belief was
objectively reasonable, that he had not been the initial
aggressor, and that he had been unable to retreat. See
General Statutes § 53a-19 (b) (1) (individual is not enti-
tled to use deadly physical force if he can avoid using
such force with complete safety by retreating). This
testimony, the petitioner reasons, was necessary to
establish a viable self-defense claim.
On our review of the record, we conclude that the
habeas court properly determined that trial counsel’s
performance fell within the range of reasonable profes-
sional assistance. The petitioner failed to overcome the
presumption that counsel’s strategic decision to advise
the petitioner not to testify was reasonable and the
result of counsel’s professional judgment. Moreover, at
his criminal trial, the petitioner was thoroughly can-
vassed by the court about his right to testify, and the
petitioner does not now claim otherwise or that his
waiver was not intelligently or voluntarily made. The
circumstances of this case appear to present a classic
example of second-guessing trial counsel’s perfor-
mance after it has proved unsuccessful. See Boyd v.
Commissioner of Correction, supra, 130 Conn. App.
297. Accordingly, counsel’s decision to advise the peti-
tioner not to testify constituted reasonable profes-
sional judgment.
B
The petitioner next argues that counsel should have
sought to introduce photographic evidence depicting
the crime scene with lighting conditions similar to those
present in the early morning when the fight began. Such
photographs, the petitioner asserts, ‘‘would have
impeached the testimony of [Reyes]’’ as it pertained to
the petitioner acting as the initial aggressor.
At the petitioner’s criminal trial, photographs that
depicted the crime scene during daylight hours were
introduced into evidence. At the habeas trial, the peti-
tioner introduced photographs that depicted the crime
scene in dark early morning conditions. He claims that
a comparison of the photographs introduced at the
criminal trial and the photographs introduced at the
habeas trial reveals that the lighting conditions shown in
the latter would impair a witness’ ability to ‘‘accurately
perceive anything visually.’’ Had trial counsel submitted
the photographs depicting the poor lighting conditions,
the petitioner argues, Reyes’ testimony about the peti-
tioner initiating the altercation with the victim would
have been called into question; without any such photo-
graphs, the trial judges had to speculate as to Reyes’
ability to perceive events.
In its memorandum of decision following the habeas
trial, the court described the evidence presented by the
petitioner to prove trial counsel’s ineffective assistance
as ‘‘woefully lacking.’’ It added that, ‘‘[a]s far as any
new evidence that would undermine the confidence [in]
the conviction, it is next to nothing,’’ and ‘‘[t]he court
hasn’t [seen anything] . . . that would in any way allow
[it] to conclude that [trial counsel] did anything other
than properly investigate this matter.’’
The record reveals that trial counsel thoroughly
cross-examined Reyes with respect to the lighting at
the time of the murder, her vantage point, and her
general ability to observe the petitioner and the victim
as they fought. The petitioner asserted that he had not
been able to overcome the presumption that he was the
initial aggressor because trial counsel did not impeach
Reyes with photographs; yet, it is not clear how the
introduction of the early morning photographs would
have impeached Reyes’ testimony,3 and the petitioner
has made no claim that the cross-examination itself
was otherwise deficient. Counsel’s strategic decision
to challenge Reyes’ ability to see the altercation through
cross-examination—as opposed to introducing photo-
graphic evidence of the lighting conditions—was an
exercise of sound professional judgment.
The petitioner has failed to satisfy the performance
prong of Strickland; see Strickland v. Washington,
supra, 466 U.S. 687–91; therefore, the habeas court did
not err in concluding that trial counsel did not provide
the petitioner with ineffective assistance at his crimi-
nal trial.4
II
We next consider the petitioner’s claim that the
habeas court abused its discretion in its evidentiary
rulings at the habeas trial. The court precluded the
petitioner’s testimony as to certain attacks on him in
the period of time prior to his stabbing the victim. He
argues that this evidence ‘‘would have been offered to
prove that the petitioner had a subjective fear for his
life during [the fight with the victim] and that his fear
was objectively reasonable. Ultimately, such evidence
would have been used to prove that trial counsel was
ineffective for failing to elicit such evidence to prove
that the petitioner was entitled to a claim of self-
defense.’’ We conclude that any error resulting from
the exclusion of this evidence was harmless.
The standard of review for evidentiary claims is well
established. ‘‘Unless an evidentiary ruling involves a
clear misconception of the law, the [habeas] court has
broad discretion in ruling on the admissibility . . . of
evidence. . . . The [habeas] court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . We will
make every reasonable presumption in favor of uphold-
ing the [habeas] court’s ruling . . . .’’ (Internal quota-
tion marks omitted.) Crawford v. Commissioner of
Correction, 285 Conn. 585, 602–603, 940 A.2d 789 (2008).
‘‘Evidence is relevant if it has any tendency to make
the existence of any fact that is material to the determi-
nation of the proceeding more probable or less probable
than it would be without the evidence.’’ (Internal quota-
tion marks omitted.) Gibson v. Commissioner of Cor-
rection, 135 Conn. App. 139, 152, 41 A.3d 700, cert.
denied, 305 Conn. 922, 47 A.3d 881 (2012).
At the habeas trial, the petitioner attempted to offer
testimony that he had been attacked previously within
the three months preceding his fight with the victim on
July 3, 1994. Members of the Latin Kings, a gang, alleg-
edly shot at the petitioner on April 15, 1994, and two
of the petitioner’s acquaintances allegedly attacked him
with a knife at a bar on June 24, 1994. The court sus-
tained two objections made by the respondent, the
Commissioner of Correction, on the ground of rele-
vancy. The petitioner submitted an offer of proof the
following day; the court noted its filing, but it did not
comment on it further. The petitioner posits that his
testimony about the prior attacks would have been rele-
vant to a finding of subjective fear and the reasonable-
ness of the fear at the criminal trial, and, thus, the
evidence was relevant to his substantive claim at the
habeas trial that counsel was ineffective by advising
him not to testify. Had he testified about the prior
assaults, the petitioner reasoned, the tribunal would
have heard additional facts tending to support his claim
of self-defense.
It is unclear from the record whether the circum-
stances of the prior attacks had any similarity to the
circumstances of the confrontation between the peti-
tioner and the victim; if the circumstances of the prior
attacks were entirely different from the circumstances
of the fight in this case, it is possible that the prior
attacks might not have been relevant to the petitioner’s
underlying self-defense claim. If it is assumed, however,
that the circumstances were similar enough so that the
testimony of the prior attacks was relevant to the self-
defense claim, and it is further assumed that trial coun-
sel knew or should have known of these prior assaults,
then it is conceivable that the petitioner’s testimony
about these attacks would have been relevant to the
petitioner’s claim that counsel provided ineffective
assistance.
Nevertheless, the preclusion of this testimony from
the habeas trial was harmless in any event because, for
the reasons we stated in part I of this opinion, trial
counsel’s overall trial strategy—even in light of the peti-
tioner’s allegations of the prior attacks—constituted
reasonable professional judgment. Counsel testified at
the habeas trial that, among other reasons, he had
advised the petitioner not to testify because his testi-
mony would suggest possible gang involvement. The
introduction of any evidence about an attack on the
petitioner by a gang, then, would have been inconsistent
with that strategy, in that it would at the very least
raise the specter of gang involvement. Moreover, the
evidence of the prior attacks, though perhaps margin-
ally relevant to the self-defense claim, likely would not
have changed the outcome of the criminal trial. Beyond
having the potential to support the proposition that the
petitioner generally may have been fearful, there is no
indication that evidence about prior attacks had any
correlation to the petitioner’s specific self-defense
claim as it pertained to the victim and to the fight in
this case. For these reasons, the preclusion of the peti-
tioner’s testimony at the habeas trial could not reason-
ably have affected the conclusion of the habeas court
that counsel provided effective assistance at the peti-
tioner’s criminal trial; therefore, the preclusion of the
testimony was at most harmless.
In light of the foregoing, we conclude that the habeas
court properly denied the petition for certification to
appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner’s statement provided in relevant part: ‘‘Suddenly, [the
victim] approached the van and began to strike me in the face with his fists.
He hit me several times through the open window. I managed to open the
van door and stepped out of the vehicle. [The victim] continued to attack
me with his fists. He never let up. I was feeling the [effects] of the blows.
I removed a pocket knife from my right jeans pocket. It had a three inch
blade. I kept it in . . . my jeans. I managed to open the blade as I crouched
alongside the van trying to move away from him. I had the knife in my left
hand and struck my left hand out toward [the victim] to stop the attack on
me. I don’t know if I struck him or not. I may have. I made repeated attempts
to stab him. He beat me until we reached the back of the van. Then he
backed away a couple of feet and was bouncing like a boxer. I did not see
any blood on him. I had blood on my [shirt] but I thought it was mine. . . .
I got into the van and the guy drove off.’’
2
It is arguable that elements of intent could be inferred from the statement
the petitioner made to the Los Angeles Police Department.
3
In fact, the photographs may have supported Reyes’ testimony. Reyes
testified that when she observed the fight between the petitioner and the
victim, it had been nighttime, and it was very dark. She also testified that
the only lighting came from a single streetlight. The photographs, which show
the crime scene at nighttime, then, are consistent with Reyes’ testimony.
4
We need not address the petitioner’s claim that prejudice resulted from
counsel’s performance. See Atkins v. Commissioner of Correction, supra,
158 Conn. App. 675 (‘‘[b]ecause both prongs of Strickland must be demon-
strated for the petitioner to prevail, failure to prove either prong is fatal to
an ineffective assistance claim’’ [internal quotation marks omitted]).