Opinion
CV124004762S
01-12-2016
Lucas Betancourt (#149727) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Lucas Betancourt, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal, habeas and habeas appellate counsel provided him ineffective legal representation. He further claims Brady, Salamon and due process violations. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the petitioner and grants the petition.
The respondent denies the claims and asserts several special defenses as to Count One.
I
Procedural History
In the criminal matter State v. Lucas Betancourt, CR05-337867, in the Waterbury Judicial District, the petitioner was charged with kidnapping in the first degree, in violation of Connecticut General Statutes § 53a-92(a)(2)(B); conspiracy to commit kidnapping in the first degree, in violation of Connecticut General Statutes § 53a-48 and 53a-92(a)(2)(B); burglary in the first degree, in violation of Connecticut General Statutes § 53a-101(a)(2); conspiracy to commit burglary in the first degree, in violation of Connecticut General Statutes § 53a-48 and 53a-101(a)(2); robbery in the second degree, in violation of Connecticut General Statutes § 53a-135(a)(1); and conspiracy to commit robbery in the second degree, in violation of Connecticut General Statutes § 53a-48 and 53a-135(a)(1).
The petitioner was charged with the aforementioned offenses with co-defendants Rico Torres, Michael Metevier and Felipe Buitrago, Jr. At his jury trial, the petitioner was represented by attorney Errol Skyers. After being convicted on all charges, the trial court (Cremins, J.), on February 23, 2006, sentenced the petitioner to a total effective sentence of twenty-five years to serve. The petitioner appealed the conviction, and in affirming the judgment the Appellate Court made the following findings of fact. State v. Betancourt, 106 Conn.App. 627, 942 A.2d 557, cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008). In his direct appeal, the petitioner was represented by attorney Joseph A. Jaumann. The following findings of that court are relevant to a disposition of the instant petition.
The jury reasonably could have found the following facts. On January 29, 2005, the defendant drove his two nephews, Ricco Torres and Felipe Buitrago, his friend, Michael Meteiver, and his own six-year-old daughter to a McDonald's restaurant in Waterbury in a green Ford Escort. While at McDonald's, the defendant and Meteiver had a discussion about stealing guns from the home of Meteiver's father-in-law, Mario Fusco, the victim. Meteiver was aware that the victim's son had a gun collection and that it had been kept at the victim's home. The defendant then drove his nephews, Meteiver and his daughter to the victim's home.
After arriving at the victim's home, the defendant ordered everyone except his daughter out of the car. The defendant directed Buitrago to watch from the front door and to enter the house last. The men then knocked on the victim's door, and when the victim answered, the men pushed themselves into the house, knocking the victim to the floor and breaking his glasses. After entering, the defendant and Torres bound the victim's hands and feet with duct tape and covered his head with a pillowcase. The defendant then asked the victim where he kept his guns and searched through the house looking for them even though the victim explained that he no longer kept his son's guns in his house. While searching, they stole $150 as well as the victim's bank card and a handgun. The defendant and Meteiver demanded of the victim the personal identification number for his bank card. After receiving it, the two men went to a Webster Bank automatic teller machine and tried unsuccessfully to withdraw funds from the victim's account. They then returned to the victim's home. After arriving, the defendant, Meteiver, Buitrago and Torres returned to the car where the defendant's daughter was waiting, and the defendant drove to his apartment in Naugatuck where he left his nephews and his daughter. The defendant then left the apartment with Meteiver. When he returned, he gave Buitrago the gun that either he or Meteiver had stolen from the victim's home and told Buitrago to put the gun in a drawer under the bed of the defendant's daughter. The defendant left the apartment again.
In the meantime, the victim had called the police. An interview with the victim led the police to believe that Meteiver might be involved in the break-in because he was the only person who knew the victim had kept his son's gun collection in his home. The police found Meteiver and arrested him on an unrelated charge. During a search of Meteiver's person, the police found the keys to the victim's car and house. Meteiver admitted that he had taken part in the break-in at the victim's house and directed the police to the defendant's apartment to find the other individuals involved.
The police arrived at the defendant's apartment with a search warrant, where they found and arrested Buitrago and Torres. Buitrago told the police that the gun they were looking for was in a drawer under the bed of the defendant's daughter. The police found the gun, which was the gun taken from the victim's home, as well as some money and mail addressed to the defendant . A little while later, the defendant arrived at his apartment and was arrested.
The following day, the police found a green Ford Escort in the driveway next to the defendant's apartment. The police obtained a search warrant for the car and found a roll of duct tape inside. An analysis of the duct tape revealed that the torn end of the duct tape roll matched the torn end found on the victim's socks. Following a jury trial, the defendant was found guilty on all counts.State v. Betancourt, supra, 106 Conn.App. 629-31 (emphasis added).
Regarding the relevant evidence at trial, the Appellate Court made the following additional findings of fact and reached certain conclusions of law concerning the charges and the evidence adduced at trial:
The defendant claims that the testimony given by Buitrago as a witness for the state was inconsistent and vague and failed to prove every element of each of the crimes charged . . . [i]n conducting our review, we are mindful that " [w]e do not sit as a [seventh] juror who may cast a vote against the verdict based [on] our feeling that some doubt of guilt is shown by the cold printed record . . . Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005) . . . [o]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007). Our review of the record indicates that there was evidence before the jury from which it could find the defendant guilty of the crimes charged beyond a reasonable doubt. Because the defendant has raised his claim in general terms, we address each crime in turn.
The defendant was convicted of kidnapping in the first degree in violation of § 53a-92(a)(2)(B), which provides in relevant part: " A person is guilty of kidnapping in the first degree when he abducts another person, and . . . (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony . . ." In the present case, Buitrago testified that the defendant forced his way into the victim's home and duct taped the victim's arms and legs, restricting his movement. A pillowcase was then put over the victim's head. Once the victim was secure, Buitrago testified, the defendant asked the victim where the guns were and proceeded to search the home for guns. The victim, although unable specifically to identify the defendant, testified to the same events. There was sufficient evidence, therefore, from which the jury could have concluded that the defendant abducted the victim and restrained him with the intent to steal the victim's guns, which is a felony .
The defendant also was convicted of burglary in the first degree in violation of § 53a-101(a)(2). " A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein, and . . . (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone." General Statutes § 53a-101(a).
The victim testified that upon hearing a knock at the front door of his home, he answered the door and immediately was knocked to the floor, where he was held down, and his hands and feet were bound with duct tape. Buitrago testified that it was the defendant who forced his way into the victim's home, knocking the victim down and, subsequently, taping his hands and feet. Buitrago also testified that the defendant's purpose in forcibly entering the house was to steal guns that belonged to the victim . In addition, Stanley Stasaitis, a detective with the Waterbury police department who responded to the victim's 911 call, noticed red marks on the right side of the victim's forehead and offered him medical assistance. From this evidence, the jury reasonably could have found that the defendant knowingly and unlawfully entered the victim's home, intentionally, knowingly or recklessly inflicting bodily injury to the victim, with the intent to steal the victim's guns .
The defendant was convicted of robbery in the second degree in violation of § 53a-135(a)(1). " A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present . . ." General Statutes § 53a-135(a). General Statutes § 53a-133 provides: " A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
The victim testified that he was knocked to the ground and held down by the individuals who forcibly had entered his home. Buitrago testified that it was the defendant who had knocked the victim to the ground, held him there and taped his hands and feet. A pillowcase was also put over the victim's head. In addition, Buitrago testified that the purpose of the forcible entry was to steal the victim's guns. Furthermore, Buitrago testified that he, Torres and Meteiver were present and assisted the defendant in committing the crime. From this evidence, the jury reasonably could have found that the defendant, assisted by other individuals actually present, used physical force against the victim in an effort to steal his guns and to prevent the victim from resisting .
In addition to the previously discussed charges, the defendant also was charged with conspiracy to commit kidnapping in the first degree in violation of § § 53a-48 and 53a-92(a)(2)(B), conspiracy to commit burglary in the first degree in violation of § § 53a-48 and 53a-101(a)(2), and conspiracy to commit robbery in the second degree in violation of § § 53a-48 and 53a-135(a)(1). " A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53a-48. " The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other's ear, signed papers, or used any magic words such as we have an agreement." (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn.App. 649, 653, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002).
Buitrago testified that, while they were at McDonald's, the defendant and Meteiver had a conversation about " getting guns " from the home of Meteiver's father-in-law. After having this conversation, the four men drove to the home of Meteiver's father-in-law, forcibly entered, knocked the victim to the ground, taped his hands and feet, put a pillowcase over his head, demanded to know where the victim kept his guns, searched the home for guns and stole $150, a handgun and the victim's bank card. From this evidence, the jury reasonably could have concluded that the defendant had conspired with others to commit the crimes for which he was charged and convicted .State v. Betancourt, supra, 106 Conn.App. 631-37 (emphasis added). On the petitioner's direct appeal, he claimed that the prosecuting authority engaged in improper conduct during closing argument, the Appellate Court found the following additional facts and reached the following conclusions of law:
The defendant's second claim is that the prosecutor engaged in impropriety when, during closing argument, she argued facts that were not in evidence that " significantly infected the fairness of the trial" by appealing to the jury's emotions . . . The defendant argues that the prosecutor improperly appealed to the emotions of the jury by arguing facts that were not in evidence regarding the defendant's relationship with his daughter. In addition, the defendant argues that the prosecutor improperly bolstered Buitrago's credibility when she argued facts that were not in evidence regarding Buitrago's concern for the defendant's daughter and for the victim. The defendant posits that this impropriety amounted to a shifting of the burden of proof from the state to the defendant, in that the prosecutor led the jury to believe that it had to accept Buitrago's testimony as true unless the defendant proved he was not credible .
During final argument, when speaking about the defendant's relationship with his daughter, the prosecutor stated: " The defendant . . . didn't care anything about his six-year-old daughter. He took her to a crime scene. He took her to commit a crime. He didn't care anything about her, [and] [w]e know if [the defendant] doesn't care enough about his daughter, then, to take her to a crime such as this, he has no regard for his young nephews . . ." Regarding Buitrago's relationship with the defendant's daughter, the prosecutor stated: " Buitrago cared about his six-year-old cousin. He didn't want her to be scared. He ran up to the bedroom, knew there was a gun there, a gun that the defendant . . . told [him] to put away. He goes there, he protects his cousin." And, regarding Buitrago's concern for the victim, the prosecutor stated: " But [Buitrago] still found some compassion in his heart to offer [the victim] a pillow ."
During trial, the state presented evidence that the defendant took his six-year-old daughter with him and left her alone in the car when he committed the crimes. There was further testimony that the handgun that was taken from the victim's home was found in a drawer under the bed of the defendant's daughter. Because the prosecutor may properly ask the jury to draw reasonable inferences from the facts presented; see State v. Ancona, 270 Conn. 568, 854 A.2d 718, cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed.2d 780 (2005); it was not improper for the prosecutor to ask the jury to draw a reasonable inference that the defendant's actions demonstrated a lack of concern for his daughter's welfare.
Similarly, there was evidence that when the police knocked on the door of the defendant's apartment, Buitrago ran to where his cousin was sleeping because he thought she might be frightened. Furthermore, there was evidence that the victim told Buitrago that he had a broken hip and, in response, Buitrago placed a pillow under the victim's hip, while he lay on the floor. Again, the prosecutor properly asked the jury to draw reasonable inferences from the facts that Buitrago demonstrated concern for his cousin and concern for the victim . Because the prosecutor was arguing facts that were in evidence and was calling on the jury to draw reasonable inferences from those facts, there was no prosecutorial impropriety. See id.
Finally, the defendant argues that by asking the jury to believe Buitrago's testimony unless something occurred in the courtroom that made the jury disbelieve him, the state improperly shifted the burden of proof to the defendant. During closing arguments, the prosecutor stated, " you need to look for other reasons that were established in this courtroom of why you should not believe . . . Buitrago. It has to be established in this courtroom. It can't be something that's speculative. It can't be something that you just dream up. It has to have been established in this courtroom for . . . Buitrago to have made up this story about his uncle." In addition, during rebuttal, the prosecutor stated, " [y]ou can't discount what . . . Buitrago says merely because the defendant tells you to, " and " you can't come up with a doubt. You can't raise a doubt. Your verdict here, the evidence here, everything that you do in this courtroom is based upon the evidence that's presented in this courtroom ."
The defendant argues that these comments " lead to the logical conclusion that, unless the defendant can prove his nephew lied, the jury must believe the state's witness." The prosecutor's comments to the jury did not amount to a mandate to believe Buitrago's testimony unless the defendant proved otherwise. The prosecutor merely requested that the jury believe Buitrago unless any evidence, including evidence put forward by the defendant, discredited his testimony. The prosecutor's comments, therefore, directed the jury to do exactly what it was supposed to do--weigh the credibility of the witness in accordance with all of the evidence put before it in the courtroom and not engage in speculation . See State v. Ayuso, supra, 105 Conn.App. at 334, 937 A.2d 1211. Asking the jury to believe a witness unless there is evidence to discredit the witness is a proper request and in no way shifts the burden of proving the defendant's guilt from the state to the defendant. We conclude that no prosecutorial impropriety occurred.State v. Betancourt, supra, 106 Conn.App. 641 (emphasis added).
The petitioner filed his first petition for a writ of habeas corpus in 2006. It was assigned docket number CV06-4001030-S at the Tolland Judicial District. The petitioner was represented by attorney Arnold Amore.
On August 25, 2010, the first habeas trial court (T. Santos, J.) dismissed certain claims without an evidentiary hearing and denied other claims in a written memorandum of decision following a trial. On appeal, the petitioner was represented by attorney Joseph Visone. The judgment was affirmed on appeal. Betancourt v. Commissioner of Correction, 132 Conn.App. 806, 35 A.3d 293, cert. denied, 303 Conn. 937, 36 A.3d 695 (2012). In so doing, the Appellate Court made the following findings of fact and reached the following conclusion of law:
The petitioner, Lucas Betancourt, appeals from the judgment of the habeas court dismissing the third count of his revised second amended petition for a writ of habeas corpus. His sole claim is that the court improperly dismissed that count without an evidentiary hearing. We affirm the judgment of the habeas court . . . In his direct appeal of that judgment of conviction, the petitioner alleged evidential insufficiency and prosecutorial impropriety. With respect to the latter claim, the petitioner argued " that the prosecutor improperly appealed to the emotions of the jury by arguing facts that were not in evidence regarding the [petitioner's] relationship with his daughter. In addition, the [petitioner] argue[d] that the prosecutor improperly bolstered Buitrago's credibility when she argued facts that were not in evidence regarding Buitrago's concern for the [petitioner's] daughter and for the victim." Id. at 639. This court rejected the petitioner's claims, concluding that " [d]uring trial, the state presented evidence that the [petitioner] took his six-year-old daughter with him and left her alone in the car when he committed the crimes. There was further testimony that the handgun that was taken from the victim's home was found in a drawer under the bed of the [petitioner's] daughter. Because the prosecutor may properly ask the jury to draw reasonable inferences from the facts presented . . . it was not improper for the prosecutor to ask the jury to draw a reasonable inference that the [petitioner's] actions demonstrated a lack of concern for his daughter's welfare. Similarly, there was evidence that when the police knocked on the door of the [petitioner's] apartment, Buitrago ran to where his cousin was sleeping because he thought she might be frightened. Furthermore, there was evidence that the victim told Buitrago that he had a broken hip and, in response, Buitrago placed a pillow under the victim's hip, while he lay on the floor. Again, the prosecutor properly asked the jury to draw reasonable inferences from the facts that Buitrago demonstrated concern for his cousin and concern for the victim. Because the prosecutor was arguing facts that were in evidence and was calling on the jury to draw reasonable inferences from those facts, there was no prosecutorial impropriety." (Citation omitted.) Id., at 640.
The petitioner thereafter filed a petition for a writ of habeas corpus. His revised second amended petition contained five counts. The first four counts alleged ineffective assistance of trial counsel; the fifth count alleged that, pursuant to General Statutes § 52-270(a), he was entitled to a new trial on the ground of newly discovered evidence. Prior to the habeas trial, the respondent, the commissioner of correction, filed a motion to dismiss counts three, four and five of the petition, which the court granted after argument thereon. After a trial on the remaining counts, the court denied the petition for a writ of habeas corpus. The court granted the subsequent petition for certification to appeal from that judgment, and this appeal followed.
On appeal, the petitioner contends that the court improperly dismissed the third count of his petition without conducting an evidentiary hearing. We disagree.
In the third count of his petition, the petitioner claims that his trial counsel was ineffective for not filing a motion in limine to keep the jury from hearing evidence regarding his daughter's presence when the crimes were planned and perpetrated. That count concludes that if " the completely irrelevant testimony of the whereabouts of the petitioner's minor child [had been precluded] the jury's verdict would have been different." Because the petitioner cannot establish the requisite prejudice resulting from that alleged deficiency, the court properly dismissed that count.
The petitioner alleges that the jury was prejudiced by references during closing argument to evidence that his daughter was present at the time he planned the crimes, that she remained in the vehicle while the crimes were perpetrated and that he and his conspirators hid a handgun under her bed. His contention necessarily fails because this court already has rejected the petitioner's claim that those references improperly inflamed the passions of the jury. See State v. Betancourt, supra, 106 Conn.App. at 639-40.Betancourt v. Commissioner of Correction, supra, 132 Conn.App. at 807-11. The instant petition followed.
In his Second Amended Petition dated May 22, 2015, the petitioner asserts the following:
1. Ineffective Assistance of Trial Counsel, Errol Skyers, in that:
a. Counsel failed to attempt to suppress evidence, to wit: a roll of duct tape seized by law enforcement from the petitioner's vehicle;
b. Counsel failed to have certain individuals available as defense trial witnesses, to wit: Anthony Moet, Jamie Jarjura and Michael Metevier;
c. Counsel failed to adequately cross examine Felipe Buitrago, Jr. as to the existence of an agreement between Mr. Buitrago and the prosecuting authority to receive a benefit in exchange for his testimony;
d. Counsel failed to present evidence of the existence of an agreement between Felipe Buitrago, Jr. and the prosecuting authority to receive a benefit in exchange for his testimony;
e. Counsel failed to investigate certain potential alibi witnesses, to wit: the petitioner's daughter, Michael Metevier, Felipe Buitrago. Jr., the petitioner's girlfriend and Jamie Jarjura; and
f. Counsel failed to file a notice of alibi as an affirmative defense.
2. Ineffective assistance of prior habeas counsel, Arnold Amore, in that:
a. Counsel failed to investigate and interview certain witnesses, to wit: the petitioner's employer, daughter, and girlfriend regarding an alibi defense;
b. Counsel failed to have the following witnesses testify at the prior habeas trial: Mario Fusco, Ricco Torres, the petitioner's daughter, Michael Metevier, Felipe Buitrago and the petitioner's girlfriend;
c. Habeas counsel failed to assert a claim regarding a Brady violation by the prosecuting authority; and
d. Habeas counsel failed to assert a Salamon claim that the petitioner's underlying criminal trial jury was not properly instructed regarding the kidnapping-related charges.
3. Ineffective assistance of habeas appellate counsel, Joseph Visone, in that:
a. Counsel failed to adequately review the prior habeas trial transcript;
b. Counsel failed to present or brief available issues arising from the prior habeas trial;
c. Counsel failed to assert the two above-referenced claims on appeal; and
d. Counsel failed to properly assert the ineffective representation of underlying trial counsel and the resulting prejudice to the petitioner.
4. Brady v. Maryland claim: a due process violation in that the prosecuting authority withheld from the defense potentially exculpatory evidence in the form of an agreement with prosecution witness Felipe Buitrago, Jr. to receive something of value in exchange for his truthful trial testimony, and further failed to correct false testimony at trial from Mr. Buitrago; and
5. Salamon/Luurtsema claim: that the jury was improperly instructed on the law of kidnapping.
The respondent denies the allegations and asserts the special defenses of res judicata as to subparagraphs (d), (e), (f) and (h) of Count One. The Court heard the trial of this matter on June 9 and June 30, 2015. The petitioner presented a number of witnesses and exhibits. The respondent presented no witnesses and no full exhibits.
II
Law/Discussion
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . 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)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish 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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
Ultimately, " [t]he 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 cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
A. Attorney Errol Skyers
The petitioner makes several claims attacking the quality of legal representation of attorney Skyers. The Court will address each in turn.
1. Motion to Suppress Duct Tape
The petitioner asserts that counsel was deficient in not seeking to suppress the admission of a roll of duct tape he asserts was illegally seized from his vehicle. As the petitioner did not elicit any evidence regarding this claim at trial or any analysis in his post-trial brief, the Court deems the claim abandoned. See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239 (" The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration"), cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
2. Failure to Investigate Potential Witnesses: Alibi
a. Anthony Moet and Jamie Jarjura
The petitioner asserts that counsel was deficient in not interviewing and presenting the testimony of Anthony Moet and Jamie Jarjura, individuals from the petitioner's employment. Counsel did indicate that if these individuals had anything helpful to offer the defense he would have made use of it. Additionally, although in the instant matter the aforementioned individuals were listed as petitioner's witnesses, they were not called at trial. The Court, therefore, was unable to determine what potential exculpatory evidence they either provided counsel that he failed to utilize for the benefit of the petitioner or would have been able to provide to counsel for the same purpose.
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Citations omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012). Again, there was barely any evidence adduced at the habeas trial as the import of the potential testimony of Moet or Jarjura. Testimony elicited from the petitioner on cross examination reveals that, as the petitioner was not working at the time of the robbery, he has failed to establish that the aforementioned individuals would have been able to supply the petitioner with an alibi. This Court found the petitioner's testimony wholly lacking in credibility, as it was both internally inconsistent and contradicted by the petitioner's own habeas trial witnesses, including his sister and Michael Metevier. In his post-trial brief, there is only the bare assertion that the failure to investigate and/or present the testimony of these two was deficient. The petitioner has failed to establish both deficient performance and prejudice as to this claim.
b. Clara Betancourt, the Petitioner's Girlfriend (Danielle) and Daughter
The petitioner asserts that counsel was deficient in failing to present the testimony of Clara Betancourt. At the habeas trial however, when asked if he requested underlying counsel to contact Clara Betancourt, the petitioner's sister, he replied: " I don't talk to her." Further regarding Ms. Betancourt and his girlfriend, the petitioner did not testify that he gave these names to counsel at all, much less asked for them to be contacted. He testified that " I was telling him what witnesses to call." He further testified that those witnesses were " my daughter [and] my job." Further, as to an alibi, the petitioner indicated clearly in his testimony his claim that at the time of the robbery, he was at his apartment and the only person with him was his six-year-old daughter. The petitioner did not present testimony from his daughter (now approximately age sixteen) at the habeas and failed to establish by other means that she would have been able to, at age six, provide the defense with potentially helpful evidence. The petitioner failed to establish the same evidence as trial as to his girlfriend, who did not testify at the habeas trial.
" [T]he presentation of testimonial evidence is a matter of trial strategy . . ." (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007).
Regarding Clara Betancourt, The Court found her testimony lacking in credibility, both in her manner of testifying and in analyzing the substance of her testimony. Her testimony, like the petitioner's was both internally inconsistent and contradicted by other evidence adduced at trial. For example, Ms. Betancourt testified that the petitioner drove to their father's residence with his daughter. She further testified that when the petitioner is spending time with his daughter, he " always stay home." The petitioner, however, testified that prior to coming back to his apartment with his daughter, they were at the mall together. He further testified that his nephews (Torres and Buitrago) came to his home on the evening of the robbery, that he left his daughter with them and went out to a bar with his girlfriend. This Court finds that the testimony of Ms. Betancourt would not have been helpful at either the underlying criminal trial or the prior habeas trial.
Regarding any information Ms. Betancourt had concerning Felipe Buitrago, this " evidence" did not exist at the time of the underlying criminal trial. Therefore, counsel could not have discovered it in the exercise of reasonable diligence. Additionally, the court finds this potential evidence is not exculpatory of the petitioner, only additionally inculpatory of Mr. Buitrago.
c. Michael Metevier
Mr. Metevier testified in the instant matter. Mr. Metevier was a co-defendant of the petitioner, Felipe Buitrago and Rico Torres. Mr. Metevier entered guilty pleas related to the robbery and was sentenced prior to the petitioner's criminal trial. At the time of his habeas trial testimony, Mr. Metevier was incarcerated for violating his probation related to the underlying criminal convictions. Mr. Metevier was called as a prosecution witness at the underling trial. Upon his arrest on the underlying charges, Mr. Metevier was Mirandized and gave a statement to law enforcement. Mr. Metevier now claims that at the time he gave his statement to police he:
1. Was under the influence of alcohol and drugs;
2. Can't remember giving his statement;
3. Was under duress;
4. Can't recall if he was given the opportunity to review his statement before signing;
5. Was being physical assaulted by the Waterbury Police Department; and
6. That he told the police what they wanted to hear.
" [A]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Mr. Metevier provided law enforcement with information detrimental to the defense of the petitioner's criminal case. Mr. Metevier was a witness wholly lacking in credibility. His ability to recall was limited only when asked questions that worked to the detriment of the petitioner. When cross examined on the substance of his written statement wherein he thoroughly and specifically implicated the petitioner in the underlying crimes (Exh. 14), his memory " conveniently" failed. His testimony, like other of the petitioner's witnesses, was internally inconsistent. For example, he testified that prior to his criminal trial testimony no one approached him to discuss testifying for the prosecution. He then testified that the trial prosecutor visited him in the " lock-up" to ask him to testify. This Court gives no weight to his habeas trial testimony, nor to the letter he penned after testifying in the underlying criminal matter. Underlying counsel cannot reasonably be said to be constitutionally deficient in not calling Mr. Metevier in his case-in-chief. Taken as a whole, his testimony would not have undermined that of Felipe Buitrago.
The Court also notes, in terms of assessing the credibility of Mr. Metevier, the shocking similarity in timing and sentence structure of the notarized " recantation" letters of Mr. Metevier and Mr. Buitrago. (Exhs. 17, 19.)
The petitioner has failed to provide evidence that this Court finds could reasonably have served as an alibi, i.e., that the petitioner was not at the location of the Robbery/Kidnapping at the time of same, during the underlying trial.
3. Felipe Buitrago
The petitioner asserts that counsel was deficient in sufficiently cross examine and present evidence that Felipe Buitrago would receive a sentencing benefit from the prosecuting authority after trial in exchange for his testimony. This claim fails.
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167 (1976). " The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
B. Attorney Arnold Amore
The petitioner asserts several claims against prior habeas counsel, Arnold Amore, related to his representation in prosecuting the previous writ. These claims fail.
For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows. " [When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [appellate] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 394.
Therefore, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel. In the instant matter, because the petitioner failed to set forth a prima facie case regarding the ineffective assistance of his trial counsel, he has not set forth a prima facie case of ineffective assistance of his habeas counsel. The Court will address the remainder of the claims directed to attorney Amore in turn.
1. Alibi Witnesses
The petitioner asserts that attorney Amore's representation was deficient in that he failed to investigate and present the testimony of the same several witnesses previously directed to the representation of underlying criminal trial counsel.
" 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. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." Burgos-Torres v. Commissioner of Correction, 142 Conn.App. 627, 639, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013). The court cannot use hindsight in evaluating a trial attorney's decision not to call a witness at trial. Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 823, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).
Again, the petitioner lays out in his post-trial brief the bare assertion, without analysis, that the failure to call the witnesses previously listed in support of an alibi was deficient. The Court has analyzed this claim to the extent necessary when discussing underlying counsel. To the extent these claims are not abandoned, they are without factual foundation.
Additionally, counsel had a strategic basis in not presenting the testimony of Clara Betancourt: his accurate understanding that any helpful information she possessed was developed after the underlying trial. Further, for the reasons previously stated, any testimony of Mr. Metevier would not have been helpful at the prior habeas trial.
2. Buitrago/ Brady Violation
The evidence adduced at the habeas trial clearly demonstrates that prior habeas counsel was not made aware of Felipe Buitrago's agreement with the prosecuting authority to receive beneficial sentencing treatment in exchange for his testimony at the underlying criminal trial. Additionally, the mere existence of such an agreement and the subsequent sentence modification are insufficient, without more, to establish deficient performance on the part of counsel. For the same reasons, counsel's failure to raise a claim pursuant to Brady v. Maryland cannot be said to be deficient.
3. Salamon / Luurtsema
On direct examination, the petitioner did not inquire of attorney Amore as to why he did not include a Salamon claim in his amended petition. On cross examination, counsel testified to his twenty years in the practice of law. He further testified to experience in the area of criminal defense, litigation of habeas corpus petitions, and state and federal trial and appellate practice. He testified credibly to being provided by the petitioner with a list of individuals to contact. He further testified to having retained an investigator to follow up on the names received. He testified credibly to having considered bringing a Salamon claim and deciding not to bring such a claim based on his understanding of legal precedent subsequent to Salamon .
" 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ."Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015). Counsel testified credibly and convincingly that, based on his own analysis of legal precedent, his understanding of the petitioner's burden of production and persuasion, and his ethical obligations as an officer of the court, he had no good-faith basis to claim prejudice pursuant to Strickland, as he felt any Salamon -related claims were " constitutionally harmless." There was no development or discussion of the underlying trial evidence in support of this claim. Instead, in his post-trial brief, the petitioner invites this Court to dissect the underlying trial transcript in search of a set of facts sufficient to support his claim. The Court respectfully declines.
" It is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
This Court is of the opinion that this claim is susceptible to the special defense of procedural default if raised by the respondent. However, this was not the case. The Court dismisses this claim after consideration of the merits, to the extent they were properly raised by the petitioner. The Court applies this finding to Count Five in the Second Amended Petition asserting an unfair jury instruction pursuant to Salamon .
C. Attorney Joseph Visone
The claims relating to the legal representation of the petitioner by attorney Visone have been previously laid out earlier on this decision. At the habeas trial, attorney Visone testified very briefly. He testified to his legal experience and preparation methods in prosecuting appeals. He testified that, in his representation of the petitioner, he selected the issue which he felt " might have some traction" and discarded the other issues as having " no traction on appeal." As to the quality of attorney Skyers' representation, he testified that, other than the issue of precluding evidence regarding the petitioner bringing his daughter along on the kidnapping/robbery (which was raised on direct appeal and resolved by the appellate court), there was no evidence to substantiate legal errors by attorney Skyers.
The petitioner's brief makes absolutely no mention of this claim, although this court will note it was not withdrawn prior to the close of evidence or in the brief. Accordingly, the Court deems this claim abandoned.
A. Brady Violation/Prosecutorial Impropriety
The petitioner asserts that the prosecuting authority improperly withheld exculpatory evidence favorable to him at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
The constitutional violation claimed by the defendant is the suppression of impeachment evidence by the state. " In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . 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. Rivera, 152 Conn.App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014). " To establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment] . . . Impeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused." (Citation omitted; internal quotation marks omitted.) State v. Richard W., 115 Conn.App. 124, 137, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009); State v. Giovanni P., 155 Conn.App. 322, 342, 110 A.3d 442, 456-57 (2015).
" [E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence . . . Documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation." (Citations omitted; internal quotation marks omitted.) United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995); see also State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986) (" any information bearing on . . . credibility as a witness was as available to the defendant as it was to the state, or could have been discovered through reasonably diligent research"); State v. Giovanni P., supra, 155 Conn.App. 343.
" The rules governing our evaluation of a prosecutor's failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and we begin our consideration of the respondent's claim with a brief review of those principles. The United States Supreme Court also has recognized that " [t]he jury's estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence; e.g., United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); which, broadly defined, is evidence " having the potential to alter the jury's assessment of the credibility of a significant prosecution witness." (Internal quotation marks omitted.) United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004). Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose. See, e.g., State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997)." Adams v. Commissioner of Correction, 309 Conn. 359, 369-70, 71 A.3d 512, 519 (2013).
" Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. " The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . . ." United States v. Bagley, supra, 473 U.S. at 675, 105 S.Ct. 3375. " In a classic Brady case, involving the state's inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. Bagley 's touchstone of materiality is a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.' Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)." Adams v. Commissioner of Correction, supra, 309 Conn. 370-71. " Any . . . understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of Brady principles . . . An unexpressed intention by the state not to prosecute a witness does not." (Citation omitted.) Walker v. Commissioner of Correction, 103 Conn.App. 485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).
In the instant matter, the Court finds that the petitioner has established, based on the whole record, including the underlying trial transcript, the testimony of then attorney Grogins, and the transcript of the hearing wherein Felipe Buitrago Jr.'s sentence was modified, that there was an agreement, prior to his giving of testimony at the underlying criminal trial, between Felipe Buitrago, Jr. and the prosecuting authority, that the prosecuting authority would consent to having his anticipated Motion for Sentence Modification heard by a judge of the Superior Court. More specifically, the Court makes the following findings of fact.
1. Felipe Buitrago, Jr. was arrested with Lucas Betancourt, Michael Metevier and Rico Torres on the underlying criminal charges;
2. On June 22, 2005, Mr. Buitrago entered guilty pleas to several charges and received an agreed upon total effective sentence of twelve years, execution suspended after five years to serve followed by five years' probation;
3. On November 8, 2005, Mr. Buitrago testified as a prosecution witness in the criminal trial of the petitioner (Exh. 4);
4. Mr. Buitrago gave testimony directly implicating the petitioner in the kidnapping, burglary and robbery of the victim (Exh. 4);
5. On direct examination by the trial prosecutor, there was no mention of any consideration being given to Mr. Buitrago in exchange for his testimony (Exh. 4);
6. On cross examination, underlying counsel inquired extensively of Mr. Buitrago regarding any incentives from the prosecuting authority to testify, including a sentence modification. Mr. Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification (Exh. 4, p. 42-43);
7. This testimony went uncorrected by the prosecuting authority;
8. In closing arguments, the trial prosecutor referred throughout her argument to the testimony of Felipe Buitrago, Jr., the trial court's instruction regarding the jury judging the credibility of witnesses, and that " the testimony of one witness alone is sufficient to convict the defendant" if the jury credits the testimony beyond a reasonable doubt (Exh. 7);
9. The prosecution noted that there was not established " in this courtroom" reasons to doubt the credibility of Mr. Buitrago (Exh. 4, p. 20);
10. The petitioner was convicted on all charges on November 15, 2005;
11. On February 23, 2006, the petitioner received a total effective sentence of twenty-five years to serve;
12. On or about November 29, 2005, counsel for Mr. Buitrago filed a Motion to Vacate Pleas and Sentence (Exh. 10);
13. On or about February 7, 2006, counsel for Mr. Buitrago filed a Motion for Sentence Modification pursuant to Connecticut Statutes § 53a-39 (Exh. 19);
14. On February 9, 2006, the prosecuting authority concurred with Mr. Buitrago's request to seek review of his sentence (Exh. 10);
15. As Mr. Buitrago was serving a sentence in excess of five years to serve, he could not seek a modification of his sentence without the consent of the prosecuting authority;
16. On March 3, 2006, before the court (Ianotti, J.), the prosecuting authority presented the court with an agreed upon disposition reducing the committed portion of Mr. Buitrago's sentence by fifty percent (Exh. 2);
17. The prosecuting authority cited Mr. Buitrago's cooperation in giving trial testimony as a basis to modify his sentence (Exh. 2);
18. The Court accepted the agreed upon disposition and sentenced Mr. Buitrago accordingly (Exh. 2, 10).
Connecticut General Statutes Section 53a-39 states in relevant part:
(a) At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced.
(b) At any time during the period of a definite sentence of more than three years, upon agreement of the defendant and the state's attorney to seek review of the sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced.
(c) The provisions of this section shall not apply to any portion of a sentence imposed that is a mandatory minimum sentence for an offense which may not be suspended or reduced by the court.Conn. Gen. Stat . § 53a-39. In the instant matter, the prosecuting authority, in furtherance of the agreement, filed a substituted information reducing a number of the felonies charged to non-mandatory subsections.
The Court finds that the prosecuting authority and Mr. Buitrago entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence. Without the consent of the prosecuting authority, Mr. Buitrago could not seek such review. The court finds such consent to be a benefit conferred upon the witness in exchange for his testimony. Mr. Buitrago gave testimony implicating the petitioner in the crimes charged. The existence of the agreement was never disclosed to underlying defense counsel either before or during trial, despite his specific inquiry on the record. Based on a review of the whole record, the Court finds the state's case rested almost exclusively on the trial testimony of Mr. Buitrago. The appellate court agreed, relying almost exclusively on the testimony of Mr. Buitrago. State v. Betancourt, supra, 106 Conn.App. 631-37. In affirming the verdict and rejecting the petitioner's direct appeal sufficiency of the evidence claims. Evidence of the agreement would have been a powerful impeachment tool for the defense and is therefore, material. The Court finds a reasonable probability that the verdict would have been different had underlying counsel and the jury been made aware of the agreement.
III
Conclusion
For the foregoing reasons, the petition is granted. Judgment shall enter for the petitioner.