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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 rele-
vant 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, dur-
ing 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, ulti-
mately 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 Gen-
eral Statutes §§ 53a-49 and 53a-134 (a) (2).2 See State
v. Marquez, 291 Conn. 122, 124, 967 A.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 testi-
fied 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-examina-
tion, he testified that he had not been offered a particu-
lar 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 testi-
mony. 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 con-
spiracy to commit robbery 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
commit robbery 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 of robbery 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 sen-
tence of fifty years incarceration, execution suspended
after thirty-five years, followed by five years of proba-
tion. On direct appeal, our Supreme Court affirmed the
judgment. State v. Marquez, supra, 291 Conn. 167.
On December 15, 2014, the petitioner filed the opera-
tive 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. Mary-
land, 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 dis-
cussed 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 appel-
late 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];
or that the questions are adequate to deserve encourage-
ment to proceed further.’’ (Emphasis in original; inter-
nal 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 con-
sider the merits of the petitioner’s underlying claims to
determine whether the habeas court reasonably deter-
mined that the petitioner’s appeal was frivolous.’’ (Inter-
nal 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 evi-
dence after a request by the defense; (2) that the evi-
dence was favorable to the defense; and (3) that the
evidence was material.’’ (Internal quotation marks omit-
ted.) 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 testi-
mony 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 thresh-
old question in any claimed Brady violation based on an
alleged undisclosed plea agreement with a cooperating
witness, is whether that 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 enter into 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, testi-
fied that she had hoped that Soler’s testimony and coop-
eration 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 other investi-
gations 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 testi-
mony 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 direct link 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 obliga-
tion to disclose favorable evidence under Brady. State
v. Ouellette, supra, 295 Conn. 186. Accordingly, we con-
clude 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]).