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Alvarez v. Commissioner of Correction
JORGE ALVAREZ v. COMMISSIONER
OF CORRECTION
(AC 48298)
Alvord, Elgo and Pellegrino, Js.
Syllabus
The petitioner, who previously had been convicted of murder in the shooting death of the victim, appealed following the denial of his petition for certification to appeal from the habeas court’s judgment denying his petition for a writ of habeas corpus. He claimed, inter alia, that the court improperly rejected his claim of ineffective assistance on the part of his prior habeas counsel, D. Held:
The habeas court did not abuse its discretion in denying the petition for certification to appeal, as the petitioner failed to demonstrate that his claim involved issues that were debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions were adequate to deserve encouragement to proceed further.
The petitioner could not prevail on his claim that D rendered ineffective assistance by failing to claim that the petitioner’s criminal trial counsel, A, who did not testify at the habeas trial, had rendered ineffective assistance regarding the questioning of a witness, Y, who had allegedly given the police an unsigned written statement, as the habeas court was not presented with evidence of A’s rationale for his questioning, A may have made a tactical decision not to question Y about the statement or deliberately declined to question him about it once it became clear that the statement would constitute inadmissible hearsay, and, even if D had rendered deficient performance, the petitioner could not establish that he was prejudiced, as Y testified unequivocally at the habeas trial that another witness to the shooting had not made any statements to him about the shooter’s identity, Y had no recollection of making a statement to the police, and there was no evidence that his statement would have been admitted at the petitioner’s criminal trial.
The habeas court correctly concluded that the petitioner failed to prove his claim of actual innocence by clear and convincing evidence, as the testimony of witnesses at the habeas trial did not constitute newly discovered evidence, and the documents the petitioner proffered were either available at the time of his criminal trial or were not admitted into evidence at his habeas trial.
Argued April 14—officially released August 18, 2026
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland, where the court, Streeto, J., granted the respondent’s
motion to preclude certain evidence and granted in part
Alvarez v. Commissioner of Correction
the respondent’s motion to dismiss; thereafter, the petition was withdrawn in part; subsequently, the case was
tried to the court, Streeto, J.; judgment denying the
petition; thereafter, the court denied the petition for
certification to appeal, and the petitioner appealed to
this court. Appeal dismissed.
Deren Manesevit, assigned counsel, for the appellant
(petitioner).
Olivia M. Hally, deputy assistant state’s attorney,
with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Silvina Bejleri, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Jorge Alvarez, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court abused its discretion by denying his petition for certification to appeal and improperly rejected his ineffective
assistance of counsel and actual innocence claims. We
conclude that the habeas court properly denied the petition for certification to appeal and, accordingly, dismiss the appeal.
This case involves a homicide in New Haven. As our
Supreme Court recounted in the petitioner’s direct
appeal, “[a]t approximately 2 a.m. on January 16, 1988,
the victim, Eugene Mabery, was returning home from
a friend’s house when he passed by the Oasis Club in
New Haven. While outside the club, Mabery became
involved in an altercation with Johnnie Baker. A crowd
of spectators, including Pamela McCrea and Kenneth
Hazard, gathered to watch the fight. After the fighting
was halted, and while Mabery was attempting to retrieve
a plastic bag containing his gym clothes, the [petitioner] drew a gun and shot him in the upper body. Mabery
immediately bent over, exclaimed that he had been shot,
gathered his belongings and ran from the scene. A few
Alvarez v. Commissioner of Correction
days later . . . his body was found . . . in the backyard of a nearby home. He had died from a gunshot wound to
his chest.” State v. Alvarez, 216 Conn. 301, 303, 579
A.2d 515 (1990).
The petitioner thereafter was arrested and a trial followed, at the conclusion of which the jury found him
guilty of murder in violation of General Statutes § 53a54a. The trial court rendered judgment accordingly and
sentenced the petitioner to a term of life imprisonment.
Id., 302. The petitioner directly appealed from that judgment of conviction, which our Supreme Court affirmed.
See id., 320.
The petitioner filed his first habeas action in 1990,
which he subsequently withdrew. On March 8, 2000,
the petitioner commenced his second habeas action. In
his operative petition for a writ of habeas corpus, the
petitioner alleged that his criminal trial counsel had
rendered ineffective assistance by failing (1) to prepare an alternative ground for the admissibility of a statement given by Hazard, (2) to conduct an adequate investigation, and (3) to object to certain statements made by
the prosecutor during closing argument. See Alvarez v.
Commissioner of Correction, 79 Conn. App. 847, 849–52,
832 A.2d 102, cert. denied, 266 Conn. 933, 837 A.2d
804 (2003). Following a trial, the habeas court rejected
those claims and dismissed the petition. See Alvarez v.
Warden, Docket No. CV-00-554379, 2002 WL 31255564
(Conn. Super. September 10, 2002). From that judgment,
the petitioner unsuccessfully appealed to this court. See Alvarez v. Commissioner of Correction, supra, 852.
The petitioner commenced a third habeas action in
2014. His operative petition, the January 12, 2021
amended petition for a writ of habeas corpus, contained
four counts and alleged actual innocence, a due process
violation, ineffective assistance on the part of his criminal trial counsel, and ineffective assistance on the part of his habeas counsel in his second habeas action.1
1
In count four of the operative petition, the petitioner alleged in relevant part that his “right to the effective assistance of habeas counsel”
Alvarez v. Commissioner of Correction
Prior to the start of trial, the petitioner withdrew his
due process claim. The habeas court also heard argument from the parties on a motion to dismiss filed by the respondent, the Commissioner of Correction, on successive petition and abuse of writ grounds. The court then
granted that motion in part, concluding that the doctrine of res judicata barred the petitioner’s ineffective assistance of counsel claim against his criminal trial counsel.
A two day trial followed, at which the petitioner offered the testimony of Jeffrey Perry, Lamont Young, McCrea,
Joseph Greene, a former detective with the New Haven
Police Department who investigated the January 16,
1988 shooting, and Attorney Sebastian O. DeSantis,
who served as habeas counsel to the petitioner in the
second habeas action. Neither the petitioner nor his
criminal trial counsel, Attorney Milo J. Altschuler,
testified at the habeas trial. In addition, the petitioner offered documentary evidence, including the transcripts
from the petitioner’s criminal trial and the trial of his second habeas action.
In its subsequent memorandum of decision, the habeas
court concluded that the petitioner had not established
deficient performance on the part of DeSantis for failing to raise an ineffective assistance claim in the second habeas action regarding Altschuler’s alleged failure
to adequately present the testimony of Young at the
had been violated, that his “habeas counsel’s performance was deficient,” and that there was “a reasonable probability that—but for [his] habeas counsel’s deficient performance—the result of [his] habeas proceeding would have been different . . . .” The petitioner did not specify whether those allegations pertained to his counsel’s performance in the first habeas action, which the petitioner withdrew without a trial or adjudication by the court, or his counsel’s performance in the second habeas action, which was dismissed by the court following a habeas trial.
On June 28, 2024, the respondent filed a motion in limine to preclude any evidence relating to the petitioner’s purported ineffective assistance claim regarding his habeas counsel’s performance in the first habeas action. After hearing argument from the parties, the habeas court granted that motion and thereafter confined its consideration of the petitioner’s claim to the conduct of the petitioner’s counsel in the second habeas action. The petitioner does not contest the propriety of that determination in this appeal.
Alvarez v. Commissioner of Correction
petitioner’s criminal trial.2 The court further concluded that the petitioner had not demonstrated prejudice
resulting therefrom. In addition, the court concluded
that the petitioner had not satisfied his burden of proving his actual innocence by clear and convincing evidence.
Accordingly, the court denied the petition for a writ of
habeas corpus. The court subsequently denied the petition for certification to appeal, and this appeal followed.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying the petition for certification to appeal. Our standard of review for such claims is well established. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, [the petitioner] must demonstrate that the denial
of his petition for certification 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. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [a] court could resolve the issues [in a different manner] . . . or . . . 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 petitioner’s appeal was frivolous.”
(Citation omitted; internal quotation marks omitted.)
2
The habeas court also concluded that the petitioner had not established deficient performance with respect to his claims that Altschuler had failed to adequately (1) present testimony from Hazard, (2) crossexamine and impeach the testimony of Greene, (3) present evidence of an incomplete and biased police investigation, and (4) present a defense of third-party culpability. The petitioner has not challenged those determinations in this appeal.
Alvarez v. Commissioner of Correction
Ramos v. Commissioner of Correction, 172 Conn. App.
282, 294, 159 A.3d 1174, cert. denied, 327 Conn. 904,
170 A.3d 1 (2017).
I
INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that the habeas court improperly rejected his claim that DeSantis had rendered ineffective assistance by failing to raise a claim of ineffective assistance regarding Altschuler’s questioning of Young
at the petitioner’s criminal trial. We disagree.
At the outset, we note that, “[t]o succeed on a claim of
ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Strickland requires that a petitioner
satisfy both a performance prong and a prejudice prong.
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. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
(Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 333 Conn. 502, 537–38, 217 A.3d
609 (2019).
An ineffective assistance of habeas counsel claim “is
commonly known as a habeas on a habeas, namely, a second petition for a writ of habeas corpus . . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . . [that] had claimed ineffective assistance of counsel at the petitioner’s underlying criminal trial or on direct appeal. . . . [A] petitioner asserting a habeas on a habeas faces the herculean task
. . . of proving . . . both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . . The second habeas petition is inextricably interwoven with the merits of the original judgment by
Alvarez v. Commissioner of Correction
challenging the very fabric of the conviction that led to the confinement.” (Citation omitted; internal quotation
marks omitted.) Santaniello v. Commissioner of Correction, 230 Conn. App. 741, 749, 331 A.3d 739, cert.
denied, 351 Conn. 926, 333 A.3d 1109 (2025). Accordingly, to prevail on an ineffective assistance of habeas
counsel claim, a petitioner must satisfy “the Strickland
standard twice by establishing that both prior habeas
counsel and trial or appellate counsel were ineffective.” (Emphasis in original.) Dearing v. Commissioner of Correction, 230 Conn. App. 145, 173, 329 A.3d 988, cert.
denied, 351 Conn. 910, 331 A.3d 158 (2025).
A
The petitioner first challenges the habeas court’s conclusion that Altschuler did not render deficient performance by failing to adequately question Young regarding
a statement that Young allegedly had made to the police
in 1988. The following additional facts, as found by the
habeas court or are otherwise undisputed, are relevant
to that claim.
Young testified at the petitioner’s criminal trial.
Young, who was seventeen years old at that time, testified that he was at a phone booth near the Oasis Club in
the early hours of January 16, 1988. When an altercation began outside that club, Young testified that he
hid behind a tree and watched two individuals fight for
approximately ten seconds. Young then heard a gunshot
and saw one of the individuals hold his stomach and run
into an alleyway. Young testified that he could not recognize and did not know either of the two participants in the altercation. On cross-examination, Young confirmed
that, at the time of the altercation, Hazard was standing next to him. Young clarified that Hazard was “not [his]
friend” but, rather, was an acquaintance. In addition,
Young testified that he had spoken to Detectives Gilbert
Burton and Greene the week after the shooting.
Later in his cross-examination, Altschuler asked
Young if he “ever [told] anybody that the person named
Alvarez v. Commissioner of Correction
[Rasheem] did the shooting?” The prosecutor objected
and, after excusing the jury, the trial court asked
Altschuler if he was “prepared to offer evidence that
[Young] did make [the] statement you just asked him
about.” Altschuler responded that he was prepared to
offer such evidence but explained that “[t]he problem is
the person that [Young] reports indicated he made the
statement to is not available as of yet. I do have information that he made this statement, yes.” The March
14, 1989 transcript indicates that a discussion then
was held off the record, at the conclusion of which the
court noted that Altschuler had “shown [the prosecutor]
something.” The prosecutor then withdrew his objection
to Altschuler’s question, and the court stated: “[A]s
long as [Altschuler] has a good faith basis for asking the question, it is a legitimate question, even though, for
whatever reason, it may develop that such evidence is
never hereafter put on, the subpoena is out.” When the
jury was recalled, Altschuler declined to re-ask Young
the question of whether Young had told anyone that
a person named Rasheem was the shooter and instead
pursued other lines of inquiry.
At the habeas trial in the present case, Young confirmed that he had witnessed a fight outside the Oasis
Club on January 16, 1988, and that he had testified at
the petitioner’s criminal trial. The following colloquy
ensued between the petitioner’s counsel and Young:
“Q. . . . Did [Hazard] make a statement to you indicating that he recognized the shooter?
“A. No.
“Q. Do you recall whether [Hazard] made any statement to you?
“A. No.
“Q. No, he did not? Or, no, you do not recall?
“A. No, he did not make any statements to me.”
The petitioner’s counsel then asked Young if he had
given “a statement to the police regarding this fight
Alvarez v. Commissioner of Correction
outside the Oasis Club,” to which Young replied: “No,
I don’t remember.” Young also testified that he did not
recall speaking to Greene about the altercation. The
petitioner’s counsel then sought to refresh Young’s recollection by reviewing a “statement allegedly given by you
to the police.” A copy of an unsigned police statement
allegedly made by Young and dated January 28, 1988,
was admitted into evidence as an exhibit and shared with
Young.3 In that statement, Young allegedly indicated
that he had witnessed the fight that culminated in the
shooting outside the Oasis Club on January 16, 1988,
and that he did not know either of the two individuals
involved in that incident. Young allegedly stated that,
after the fight was over, Hazard had informed him that
a “guy named Rasheem” was the shooter. The statement
further indicates that Hazard allegedly had told Young
that “the guy that got shot [in the January 16, 1988
altercation], that was his cousin,” and that Hazard “said he hates the guy Rasheem” and said that he “can’t stand
him.” In that statement, Young also indicated that he
did not know the identity of “Rasheem.” After reviewing
that exhibit, Young testified that he had no recollection of meeting with the police or making that statement.
On appeal, the petitioner claims that Altschuler had
rendered deficient performance by failing to question
Young regarding the statements contained in that police
statement. We disagree. Significantly, the petitioner
did not call Altschuler as a witness at the habeas trial
in the present case. The habeas court, therefore, was
not presented with evidence of Altschuler’s rationale
for not pursuing that line of questioning after the prosecutor withdrew his objection thereto.4 As this court
has observed, “[a]n attorney’s line of questioning on
3
That exhibit is seven pages in length. Its final page contains lines marked “signature” and “date,” which were left blank, as were two lines dedicated to “witness” signatures. The attestation clause for a “notary public” likewise was not completed in any manner.
4
The record indicates that Altschuler did testify at the habeas trial in the petitioner’s second habeas action. The transcript of that trial confirms that Altschuler was not questioned about his cross-examination of Young at the petitioner’s criminal trial.
Alvarez v. Commissioner of Correction
examination of a witness clearly is tactical in nature.
[As such, this] court will not, in hindsight, second-guess counsel’s trial strategy. . . . 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.” (Internal quotation marks omitted.) Balbuena v. Commissioner of Correction, 231 Conn. App. 289, 338, 332
A.3d 1008, cert. denied, 352 Conn. 905, 335 A.3d 845
(2025). “Once an attorney makes an informed, strategic
decision regarding how to cross-examine a witness, that
decision is virtually unchallengeable.” (Internal quotation marks omitted.) Taft v. Commissioner of Correction,
159 Conn. App. 537, 557, 124 A.3d 1, cert. denied, 320
Conn. 910, 128 A.3d 954 (2015).
As the habeas court noted in its memorandum of decision, Altschuler may have made a tactical decision not
to question Young regarding his alleged statement to
the police, such as wanting to limit the areas of inquiry available to the prosecutor on redirect examination. See, e.g., Hamlin v. Commissioner of Correction, 113 Conn.
App. 586, 590, 967 A.2d 525 (trial counsel testified at
habeas trial that she “made a tactical decision not to
cross-examine [a witness to a shooting] regarding the
petitioner’s alleged statement . . . because it would open the door to other testimony”), cert. denied, 291 Conn.
917, 970 A.2d 728 (2009).
In addition, Young testified at the habeas trial that he
had no recollection of meeting with the police or making
a statement to them regarding what Hazard allegedly
had said at the time of the shooting. As a result, there
is no evidence as to how Young would have responded if
Altschuler asked him about that statement at the petitioner’s criminal trial.
Furthermore, although the state withdrew its initial
objection to Altschuler’s question at the criminal trial following an off-the-record discussion outside the presence
of the jury, Altschuler may have deliberately declined to question Young further once it became clear that Young’s
Alvarez v. Commissioner of Correction
statement to the police that Hazard had told him that
the shooter was a “guy named Rasheem” contained a
second level of hearsay and, thus, likely was inadmissible. See, e.g., State v. Colon, 272 Conn. 106, 212, 864 A.2d
666 (2004) (“[b]ecause [Maria] Hernandez’ statement
contained an additional level of hearsay, namely, what
[Virginia] Quintero had told Hernandez, both Quintero’s
statement to Hernandez and Hernandez’ statement to the
police about what Quintero had told her must be independently admissible under a hearsay exception in order for
Hernandez’ statement to be substantively admissible”),
cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); In re Alizabeth L.-T., 213 Conn. App. 541,
592–93, 278 A.3d 547 (2022) (discussing hearsay within
hearsay). For all of those reasons, we conclude that the
petitioner has failed to demonstrate that Altschuler rendered deficient performance at the petitioner’s criminal
trial. He has not established that Altschuler’s conduct
was not reasonably competent or that it fell outside the
range of competence displayed by lawyers with ordinary
training and skill in the criminal law. Accordingly, the
petitioner cannot prevail on his claim that DeSantis
had rendered ineffective assistance by failing to raise a claim of ineffective assistance regarding Altschuler’s
questioning of Young at the petitioner’s criminal trial.
See Santaniello v. Commissioner of Correction, supra,
230 Conn. App. 749; Dearing v. Commissioner of Correction, supra, 230 Conn. App. 173.
B
Even if we were to conclude otherwise, the petitioner
could not prevail. To succeed on a claim of ineffective
assistance, the petitioner also must satisfy the prejudice prong of Strickland by demonstrating “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Bowens v.
Commissioner of Correction, supra, 333 Conn. 537–38.
The petitioner has not done so in the present case.
Alvarez v. Commissioner of Correction
Significantly, Young testified at the habeas trial that
he had no recollection of meeting with the police or making a statement to them regarding what Hazard had told
him at the time of the shooting. Young also testified
unequivocally that Hazard “did not make any statements” to him regarding the identity of the shooter.
As the habeas court aptly noted in its memorandum of
decision, “there is no evidence regarding what additional testimony [Young] might have given or how, if at all,
it would have altered the outcome of the [petitioner’s]
criminal trial.”
In addition, the petitioner did not offer any evidence
indicating that the trial court would have admitted
Young’s statement to the police at the criminal trial. As we previously observed, that statement contains hearsay
within hearsay. See Conn. Code Evid. § 8-7 (“[h]earsay
within hearsay is admissible only if each part of the
combined statements is independently admissible under
a hearsay exception”). Moreover, that alleged statement
was not signed by Young, the witnesses to that statement, or a notary public. See footnote 3 of this opinion. Because (1) Young testified unequivocally at the habeas
trial that Hazard did not make any statements to him
regarding the identity of the shooter, (2) Young had no
recollection of making a statement to the police, and (3) there is no evidence that the statement in question would have been admitted at the petitioner’s criminal trial, we agree with the habeas court that the petitioner failed to satisfy the prejudice prong of Strickland.
II
ACTUAL INNOCENCE
The petitioner also contends that the habeas court
improperly rejected his actual innocence claim. We disagree.
“[A]ctual innocence—sometimes referred to as factual
innocence—is distinct from legal innocence. . . . Actual
innocence is not demonstrated merely by showing that
there was insufficient evidence to prove guilt beyond a
Alvarez v. Commissioner of Correction
reasonable doubt. . . . Instead, actual innocence requires affirmative proof that might tend to establish that the
petitioner could not have committed the crime, that
a third party committed the crime, or that no crime
occurred. . . . The petitioner must therefore do more
than expose deficiencies in the state’s proof.” (Citations omitted; internal quotation marks omitted.) Moon v.
Commissioner of Correction, 354 Conn. 181, 194, 350
A.3d 496 (2026).
For that reason, “[a] petitioner who seeks habeas corpus relief on the basis of a freestanding claim of actual innocence bears a heavy burden . . . to establish that,
notwithstanding his conviction, he is entitled to a new
trial. . . . [A petitioner must satisfy] a two part test . . . to succeed on a claim of actual innocence. First, the petitioner must establish by clear and convincing evidence
that, taking into account all of the evidence—both the
evidence adduced at the original criminal trial and the
evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted.
Second, the petitioner must also establish that, after
considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact
finder would find the petitioner guilty of the crime.”
(Citations omitted; internal quotation marks omitted.)
Id., 192–93.
Although our Supreme Court has not yet addressed
the issue of whether an actual innocence claim must be
supported by newly discovered evidence; see id., 196
n.3; Gould v. Commissioner of Correction, 301 Conn.
544, 551 n.8, 22 A.3d 1196 (2011); “the Appellate Court
consistently has held that a claim of actual innocence
must be based on newly discovered evidence . . . .” Moon
v. Commissioner of Correction, supra, 354 Conn. 196
n.3; see also Ross v. Commissioner of Correction, 217
Conn. App. 286, 302, 288 A.3d 1055 (collecting cases),
cert. denied, 346 Conn. 915, 290 A.3d 374 (2023). As
this court has explained, “[t]o prove actual innocence the petitioner must be able to show that based on proffered
Alvarez v. Commissioner of Correction
newly discovered evidence and the entire record before
the jury that convicted him, no rational trier of fact
could [find] proof of guilt beyond a reasonable doubt. . . . To permit a petitioner to bring a substantial claim of
actual innocence based on evidence that is not newly
discovered would be inconsistent with our Supreme
Court’s conclusion that the standard governing a claim
of actual innocence should be more demanding than the
standard used for determining whether a new trial should
be granted because of newly discovered evidence. . . .
We view this holding as one that balances the societal
interests of finality, comity, and conservation of scarce judicial resources, against the benefit of dispos[ing] of the case as law and justice require. . . . Entertaining claims of actual innocence that are not based on newly discovered
evidence would have a disruptive effect on the finality of judgments because it would permit a petitioner to raise
allegations that, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, could have been raised at the criminal trial. . . . [That] evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that
the proffered evidence could not have been discovered
prior to the petitioner’s criminal trial by the exercise of due diligence.” (Citations omitted; internal quotation
marks omitted.) Nemhard v. Commissioner of Correction, 157 Conn. App. 368, 374–75, 117 A.3d 915, cert.
denied, 319 Conn. 902, 122 A.3d 637 (2015). This panel is bound by that precedent. See, e.g., Ross v. Commissioner
of Correction, supra, 217 Conn. App. 303 (declining to
depart from Appellate Court precedent regarding newly
discovered evidence requirement); Doe v. West Hartford,
168 Conn. App. 354, 379, 147 A.3d 1083 (2016) (“[a]
previous decision of [the] Appellate Court [is] binding
until it is overruled either by our Supreme Court or by
an en banc panel of this court” (internal quotation marks omitted)), aff’d, 328 Conn. 172, 177 A.3d 1128 (2018).
In his September 30, 2024 posttrial brief to the habeas
court, the petitioner acknowledged that precedent and
then averred in relevant part: “Assuming [the habeas
Alvarez v. Commissioner of Correction
court] finds that newly discovered evidence is necessary to support the claim of actual innocence in conjunction with all other evidence presented, the petitioner acknowledges that he has not met his burden of proof.” It therefore
is not surprising that the court, in its memorandum of
decision, concluded that the petitioner had not presented any newly discovered evidence.
On appeal, the petitioner has reversed course and now
claims that he did present newly discovered evidence at
the habeas trial, namely: (1) an affidavit that McCrea
executed in 2006; (2) an affidavit executed by Perry in
2005; (3) the unsigned police statement allegedly made
by Young and dated January 28, 1988; (4) the January
27, 1988 police incident report; (5) McCrea’s habeas
trial testimony; and (6) Perry’s habeas trial testimony.
We begin with the January 28, 1988 police statement
allegedly made by Young and the January 27, 1988 police
incident report. Those documents plainly were available
at the time of the petitioner’s criminal trial. They are, by definition, not newly discovered evidence.
The affidavits of McCrea and Perry also require little
discussion. Those documents were not admitted into
evidence as full exhibits in the present case. Accordingly, the habeas court properly did not consider them in ruling on the petitioner’s actual innocence claim.5 See, e.g., State v. King, 350 Conn. 303, 343, 324 A.3d 81 (2024)
5
The petitioner also argues that the habeas court failed to consider “the entire constellation of evidence” in ruling on his actual innocence claim. We disagree. Unless “[a] statement [by the court] suggest[s] that the court did not consider [certain] testimony, we . . . are entitled to presume that the trial court acted properly and considered all the evidence.” (Internal quotation marks omitted.) Moye v. Commissioner of Correction, 168 Conn. App. 207, 230, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017). In this case, the court specifically indicated that it had considered all properly admitted evidence by “listening to the testimony [of the witnesses], reading the transcripts [from the petitioner’s criminal trial and his prior habeas trial], considering the evidence, and reviewing the posttrial briefs of both parties . . . .” The court further stated that “[a]ny evidence in the record not specifically mentioned in this decision that would support conclusions contrary to those reached by the court in its legal analysis,
Alvarez v. Commissioner of Correction
(“when acting as triers of fact, [judges] consider only
properly admitted evidence when rendering their decision”); Moye v. Commissioner of Correction, 168 Conn.
App. 207, 234, 145 A.3d 362 (2016) (“A [trier of fact] is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed. . . . [This principle is] fully applicable in habeas corpus trials.” (Emphasis altered;
internal quotation marks omitted.)), cert. denied, 324
Conn. 905, 153 A.3d 653 (2017).
The petitioner also contends that McCrea’s testimony
at the habeas trial constituted newly discovered evidence. We do not agree. Days after the shooting in 1988, McCrea
provided a signed statement to the police, in which she
indicated that she saw the petitioner shoot Mabery. See
State v. Alvarez, supra, 216 Conn. 312. At the petitioner’s criminal trial, McCrea recanted that statement and
testified that “she had not seen who shot the victim.”6 Id., 313. For that reason, McCrea’s testimony at the habeas
trial that she did not recall seeing anyone shoot Mabery
and did not know who shot him is consistent with her
prior testimony at the petitioner’s criminal trial. We
agree with the habeas court that McCrea’s testimony
at the habeas trial was not newly discovered evidence.7
In addition, the petitioner claims that Perry’s testimony at the habeas trial, in which he invoked his fifth
whether said evidence was contested or uncontested by the parties, was considered and discredited or otherwise rejected by the court.”
6
After McCrea recanted her statement identifying the petitioner as the shooter, the state introduced her prior written inconsistent statement into evidence for substantive purposes under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). On direct appeal, our Supreme Court concluded that the trial court did not abuse its discretion in admitting McCrea’s prior statement into evidence. See State v. Alvarez, supra, 216 Conn. 314.
7
The habeas court further declined to credit her testimony, stating in relevant part: “Given the age of the case, McCrea could not recall much, if anything, about the case, her trial testimony, the statement she gave to [the] police, or whether she even witnessed the shooting. She also acknowledged that various medications she currently takes impact her ability to accurately recall relevant events. The petitioner
Alvarez v. Commissioner of Correction
amendment right against self-incrimination, constituted
newly discovered evidence. We disagree.
The record before us indicates that Perry had testified at the trial in the petitioner’s second habeas action. DeSantis testified that, when he asked Perry if he had
committed the murder on January 16, 1988, Perry
invoked his fifth amendment right against self-incrimination. At the habeas trial in the present case, Perry
testified that he had “no knowledge” as to whether someone other than the petitioner had shot Mabery. Perry was
also asked a series of questions about the circumstances
surrounding that shooting, to which he invoked his fifth
amendment right against self-incrimination.8 After confirming that he had testified at the petitioner’s previous habeas trial, Perry stated that he had “no further testimony.” Perry’s testimony thus does not constitute newly
discovered evidence of the petitioner’s actual innocence.
Moreover, Perry’s testimony does not constitute substantive evidence that the petitioner is actually innocent of the murder of Mabery. Perry testified that he had “no
knowledge” that the petitioner did not kill Mabery. That
avers in his posttrial brief that her habeas testimony ‘that [Greene] fed her information before her statement was taken’ renders unworthy of belief her police statement identifying the petitioner as the shooter. However, during her habeas testimony, McCrea reviewed her statement to [Greene] and had no independent recollection of the facts contained therein, given its age and her medication. Therefore, the court does not credit her habeas testimony that [Greene] told her what to say in her statement. Her hazy and inconsistent recollection of events is woefully insufficient to satisfy the petitioner’s stringent burden of proving actual innocence by clear and convincing evidence.”
8
Specifically, the petitioner’s counsel asked Perry if he (1) “ever offer[ed] [the petitioner] money in exchange for his silence . . . related to this murder conviction,” (2) knew “anything about police corruption in the New Haven police force at the time . . . of [the petitioner’s criminal] trial,” (3) exercised “a level of control over the Newhallville area of New Haven” at the time of that trial, and (4) had previously stated that “Greene was paid and corrupted by outside forces.” Perry, who had his own habeas corpus action pending at that time and was represented by counsel, replied that, “[a]t the advice of my counsel, I’m pleading the fifth” to those questions. The transcript indicates that the court paused the proceeding on July 8, 2024, to allow Perry to confer with his legal counsel, Attorney James Mortimer.
Alvarez v. Commissioner of Correction
testimony cannot be considered affirmative proof that
the petitioner could not have committed the crime. See
Moon v. Commissioner of Correction, supra, 354 Conn.
194. Although the four questions to which Perry invoked
his fifth amendment right against self-incrimination may
pertain to criminal activity on his part, such as bribery or drug dealing;9 see footnote 8 of this opinion; Perry’s decision to invoke his fifth amendment right against
self-incrimination in response to those questions, and
the reasonable inferences drawn therefrom, simply does
not constitute affirmative proof that the petitioner did
not murder Mabery.
As the United States Supreme Court has observed,
“habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.” Schlup v. Delo,
513 U.S. 298, 321, 115 S. Ct. 851, 130 L. Ed. 2d 808
(1995); see also Saunders v. Commissioner of Correction, 343 Conn. 1, 15, 272 A.3d 169 (2022) (“claims of
actual innocence are exceedingly rare”). On our thorough
review of the record, we agree with the habeas court that the petitioner failed to meet his formidable burden of
proving his actual innocence.
In light of the foregoing, we conclude that the petitioner has not demonstrated that the issues raised with
regard to the habeas court’s denial of his petition for
a writ of habeas corpus are debatable among jurists of
reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Having failed to satisfy any of
these criteria, the petitioner cannot demonstrate that
the court abused its discretion in denying the petition
for certification to appeal. See Simms v. Warden, supra,
230 Conn. 612.
The appeal is dismissed.
In this opinion the other judges concurred.
9
DeSantis testified at the habeas trial that the neighborhood in question was a “poor” one in which “a lot of drug dealing [was] occurring in.”