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LUIS A. SANTANA, JR. v. COMMISSIONER
OF CORRECTION
(AC 43687)
Alvord, Alexander and Clark, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder, conspiracy
to commit murder, and carrying a pistol without a permit, sought a writ
of habeas corpus, claiming, inter alia, that his trial counsel, H, provided
ineffective assistance by failing to investigate and present a third-party
culpability defense. Specifically, the petitioner alleged that H failed,
inter alia, to question D, a detective involved in the case, regarding his
investigation of certain other suspects, to present out-of-court state-
ments of certain witnesses that D had interviewed, and to offer into
evidence a statement made by a witness, M, to the police in which he
identified individuals other than the petitioner as suspects. Following
an evidentiary hearing, the habeas court rendered judgment denying the
habeas petition. The habeas court denied the petition for certification
to appeal, and the petitioner appealed to this court. Held that the habeas
court did not abuse its discretion in denying the petition for certification
to appeal because the petitioner failed to demonstrate that the issues
raised were debatable among jurists of reason, that the court could have
resolved the issues in a different manner, or that the questions raised
were adequate to deserve encouragement to proceed further: although,
contrary to the claim of the respondent Commissioner of Correction,
the petitioner’s stated grounds for appeal in his application for waiver
of fees, costs and expenses and appointment of counsel sufficiently put
the habeas court on notice that the petitioner sought to appeal his claim
of ineffective assistance of counsel for failing to investigate and present
a third-party culpability defense, the petitioner did not provide any
affirmative evidence that would support such a defense, as he failed to
produce D as a witness at the habeas trial, to identify the particular
witnesses whose out-of-court statements he claimed would support his
defense, or to introduce into evidence a statement or photographic array
signed by M that identified individuals other than the petitioner as
suspects, and the witnesses that the petitioner did produce were unable
to identify the individuals they had seen following the incident; more-
over, the petitioner failed to establish that he was prejudiced by H’s
decision to forgo a third-party culpability defense because he did not
demonstrate that there was a reasonable probability that the outcome
of his criminal trial would have been different if H had presented such
a defense; accordingly, the appeal was dismissed.
Argued April 7—officially released November 2, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Newson, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Naomi T. Fetterman, for the appellant (petitioner).
Thadius L. Bochain, deputy assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, and Rebecca A. Barry, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
ALEXANDER, J. The petitioner, Luis A. Santana, Jr.,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court (1) abused its discretion
in denying his petition for certification to appeal from
the denial of his habeas petition and (2) improperly
concluded that he had not received ineffective assis-
tance from his criminal trial counsel. We disagree that
the court abused its discretion in denying the petition
for certification to appeal and, accordingly, dismiss
the appeal.
At the petitioner’s criminal trial, the jury reasonably
could have found that on September 17, 2006, the peti-
tioner and Geraldo Rosado shot the victim, Aaron
McCrea, in an area between Portsea Street and Loop
Road in New Haven. State v. Santana, 313 Conn. 461,
463–64, 97 A.3d 963 (2014). The victim died from multi-
ple gunshot wounds. Id., 464. The petitioner was con-
victed of murder in violation of General Statutes § 53a-
54a, conspiracy to commit murder in violation of Gen-
eral Statutes §§ 53a-48 and 53a-54a, and carrying a pistol
without a permit in violation of General Statutes § 29-
35. Id., 463, 466. Our Supreme Court affirmed his convic-
tion on direct appeal. Id., 464.
The petitioner initiated this habeas action and, on
January 24, 2018, he filed an amended petition alleging
three claims. Only the first claim, in which the petitioner
alleged ineffective assistance of his criminal trial coun-
sel, Lawrence Hopkins, for, inter alia, failing to investi-
gate and to present a third-party culpability defense, is
relevant to this appeal. With respect to this claim, the
petitioner alleged that Hopkins was ineffective because,
inter alia, he failed (1) to question Detective Michael
Hunter regarding an investigation of two other suspects,
Jose Montero and Juan Nunez, (2) to present out-of-
court statements of witnesses interviewed by Hunter
‘‘to show what was in [Hunter’s] mind at the time of
his investigation of [Montero] and [Nunez],’’ and (3) to
offer a statement made by Joseph Mungo to the police
in which he identified Montero and Nunez as the individ-
uals he saw after the shooting.
A trial on the habeas petition was held on December
11 and 12, 2018, and May 8, 2019. The petitioner did
not present Hunter as a witness but presented multiple
other witnesses and exhibits.1 Jose Velazquez testified
that, at the time of the murder, he lived on Liberty
Street in New Haven, heard ‘‘three or four shots’’ and
‘‘saw somebody running, but I didn’t see no faces.’’ He
further testified that, when shown photographic arrays,
he was unable to identify the individual he saw running.
Aixa Cruz testified that, at the time of the murder, she
lived on Portsea Street in New Haven and that she had
‘‘seen two guys running in mask[s] and I didn’t see
nobody. I mean, I couldn’t tell the person, who it was.
They [were] covered.’’ She recalled looking at photo-
graphic arrays and being unable to identify anyone.
Hopkins testified that he did not recall any specific
discussions with the petitioner regarding a third-party
culpability defense and added that he does not ‘‘like
the defense generally. It’s difficult to proffer because
there’s got to be a direct connection between the third
party and the crime and that’s fairly rarely the case.’’
Hopkins explained that his defense ‘‘consisted largely
of attacking the credibility of the witnesses . . . .’’ He
testified that he was aware there were ‘‘two possible
third parties, [Nunez] and [Montero]’’ but that he ‘‘didn’t
see . . . any articulable reason to proffer that as third-
party evidence’’ because he ‘‘didn’t have any evidence
that would amount to anything that [he] deemed would
be admissible.’’ In addition, Hopkins testified that he
had not wanted to ‘‘put Montero into the mix’’ because
‘‘[i]t would have opened a Pandora’s box of evidence
that [he] felt would have been fatal rather than helpful.’’
Hopkins explained that he wanted to keep out a state-
ment made by the petitioner’s codefendant, Rosado,
that implicated the petitioner in the crime, in which
Rosado ‘‘claims that [Montero] was present when a guy
by the name of Primo ordered the hit of the deceased
in this case in return for a $15,000 payment’’ and indi-
cated that the petitioner ‘‘accepted the offer of the mon-
eys and the guns with which to commit the homicide.’’
On October 17, 2019, the court issued a memorandum
of decision denying the petition for a writ of habeas
corpus. The court concluded that the petitioner’s claim
of ineffective assistance of counsel ‘‘fails because of a
complete lack of evidence.’’ The court stated that the
petitioner’s claim that Hopkins was ineffective when
he did not question Hunter about his investigation into
Nunez and Montero failed as a matter of law because
the petitioner did not present Hunter as a witness. The
claim that Hopkins was deficient for not presenting out-
of-court statements of witnesses interviewed by Hunter
failed because the petitioner did not identify particular
witnesses or ‘‘support this claim with any affirmative
evidence.’’ The court indicated that ‘‘the supposed out-
of-court statements made [by] whatever witnesses he
interviewed were not produced.’’ Further, the court
stated that the petitioner did not establish ‘‘how . . .
Hunter’s state of mind would have been relevant or
admissible on the issue of . . . Hopkins establishing a
defense of third-party culpability.’’
On October 24, 2019, the petitioner filed a petition
for certification to appeal, which the court denied. This
appeal followed. On appeal, the petitioner argues that
the habeas court (1) abused its discretion in denying
his petition for certification to appeal because the issues
are debatable among jurists of reason, a court could
resolve the issues in a different manner, or the questions
raised are adequate to deserve encouragement to pro-
ceed further, and (2) improperly concluded that he had
not received ineffective assistance as a result of Hop-
kins’ failure to investigate and present a third-party
culpability defense.
The respondent, the Commissioner of Correction,
first argues that the petitioner’s claims are unreviewable
because he did not state his claim of ineffective assis-
tance of counsel for failing to present a third-party
culpability defense in his petition for certification to
appeal. We are not persuaded by this argument. The
petitioner stated his grounds for appeal in his applica-
tion for waiver of fees, costs and expenses and appoint-
ment of counsel on appeal.2 He filed the application in
a self-represented capacity.
‘‘It is the established policy of the Connecticut courts
to be solicitous of [self-represented] litigants and when
it does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
[self-represented] party. . . . The modern trend . . .
is to construe pleadings broadly and realistically, rather
than narrowly and technically.’’ (Internal quotation
marks omitted.) Henderson v. Commissioner of Cor-
rection, 181 Conn. App. 778, 793, 189 A.3d 135, cert.
denied, 329 Conn. 911, 186 A.3d 707 (2018). In stating
his grounds for appeal, the petitioner specifically
referred to ‘‘testimony of witnesses . . . in regards to
a third-party culpability defense as these witnesses orig-
inally identified other perpetrators and could not iden-
tify the petitioner.’’ Further, the issues raised at the
habeas trial included multiple claims of ineffective
assistance, with one of those being that Hopkins failed
to investigate and present a third-party culpability
defense. On the basis of these specific facts and circum-
stances, we conclude that the petitioner’s stated
grounds for appeal sufficiently put the habeas court on
notice that the petitioner sought to appeal his claim of
ineffective assistance of counsel for failing to investi-
gate and present a third-party culpability defense.
Next, the respondent argues that the habeas court
did not abuse its discretion in denying the petitioner’s
petition for certification to appeal and that it properly
concluded that the petitioner failed to prove that he
was prejudiced by the alleged deficient performance of
his counsel. We agree and, for the following reasons,
dismiss the petitioner’s appeal.
We first set forth the legal principles relevant to our
resolution of this appeal. ‘‘Faced with a habeas court’s
denial of a petition for certification to appeal, a peti-
tioner can obtain appellate review of the [disposition]
of his [or her] 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,
he [or she] must demonstrate that the denial of his [or
her] petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he [or she] must then prove that
the decision of the habeas court should be reversed on
its 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 differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Whistnant v. Commissioner
of Correction, 199 Conn. App. 406, 414–15, 236 A.3d
276, cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . . To satisfy the prejudice prong, a claim-
ant must demonstrate that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
. . . A reasonable probability is a probability sufficient
to undermine confidence in the outcome. . . . In its
analysis, a reviewing court may look to the performance
prong or to the prejudice prong, and the petitioner’s
failure to prove either is fatal to a habeas petition.’’
(Citations omitted; internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 201 Conn.
App. 1, 11–13, 242 A.3d 107, cert. denied, 335 Conn. 983,
242 A.3d 105 (2020).
The legal principles applicable to a claim of third-
party culpability are well known. ‘‘It is well established
that a defendant has a right to introduce evidence that
indicates that someone other than the [petitioner] com-
mitted the crime with which the [petitioner] has been
charged. . . . The [petitioner] must, however, present
evidence that directly connects a third party to the
crime. . . . It is not enough to show that another had
the motive to commit the crime . . . nor is it enough
to raise a bare suspicion that some other person may
have committed the crime of which the [petitioner] is
accused.’’ (Internal quotation marks omitted.) McClain
v. Commissioner of Correction, 188 Conn. App. 70,
77–78, 204 A.3d 82, cert. denied, 331 Conn. 914, 204
A.3d 702 (2019).
In the present case, the petitioner identified Montero
and Nunez as potentially culpable third parties. As the
habeas court stated, however, the petitioner failed to
provide ‘‘any affirmative evidence’’ that would support
his third-party culpability defense. The petitioner failed
to produce Hunter as a witness at the habeas trial. He
also failed to ‘‘identify the particular witnesses’’ whose
out-of-court statements would support his third-party
culpability defense identifying Montero and Nunez as
the perpetrators of the crime. As the habeas court noted,
the petitioner submitted into evidence a transcript of an
interview of Mungo conducted by Hunter and Detective
Clarence Willoughby in which they discuss a prior iden-
tification made by Mungo after looking at photographic
arrays. Neither a statement signed by Mungo nor signed
photographic arrays, however, were introduced into
evidence. Additionally, neither Velazquez nor Cruz iden-
tified Montero or Nunez, as they were both unable to
identify whom they had seen after the shooting. Further,
Hopkins testified that, at the time of the petitioner’s
trial, he was aware that there were ‘‘two possible third
parties, [Nunez] and [Montero]’’ but that ‘‘I didn’t see
. . . any articulable reason to proffer that as third-party
evidence’’ because ‘‘I didn’t have any evidence that
would amount to anything that I deemed would be
admissible.’’ It is not enough for the petitioner to raise
a ‘‘bare suspicion’’ that someone else, namely, Montero
and Nunez, may have committed the crime. McClain
v. Commissioner of Correction, supra, 188 Conn. App.
77–78. Further, without evidence directly connecting
Montero or Nunez to the murder, the petitioner cannot
demonstrate that if Hopkins had presented a third-party
culpability defense, there is a reasonable probability
that the outcome of his criminal trial would have been
different. See Anderson v. Commissioner of Correc-
tion, supra, 201 Conn. App. 12–13. Because he did not
present any affirmative evidence supporting his third-
party culpability claim, we conclude that the petitioner
has failed to demonstrate that he was prejudiced by
Hopkins’ decision to forgo a third-party culpability
defense.
For the foregoing reasons, we conclude that the peti-
tioner has failed to demonstrate that the issues raised
are debatable among jurists of reason, that the court
could resolve the issues in a different manner, or that
the questions are adequate to deserve encouragement
to proceed further. Therefore, the petitioner failed to
establish that the court abused its discretion in denying
his petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner introduced multiple documents into evidence, including
an arrest warrant application, a search warrant application, an incident
report, and a transcript of an interview with Mungo.
2
The petitioner stated his grounds for appeal as follows: ‘‘Abuse of discre-
tion in credibility findings. No consideration was given to petitioner’s testi-
mony regarding plea deal, judge only discusses testimony of [Attorneys]
Hopkins and O’Brien. No consideration was given to testimony of witnesses
Axia Cruz, Jose Velazquez or the statements of Joseph Mungo who was
deceased before these proceedings in regards to a third-party culpability
defense as these witnesses originally identified other perpetrators and could
not identify the petitioner.’’ (Emphasis added.)