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Santiago v. Commissioner of Correction
VICTOR SANTIAGO v. COMMISSIONER
OF CORRECTION
(AC 48221)
Clark, Seeley and Westbrook, Js.*
Syllabus
The petitioner, who had previously been convicted of murder, appealed following the denial of his petition for certification to appeal from the habeas court’s judgment denying his habeas petition. He claimed, inter alia, that the court improperly concluded that his trial counsel, M, did not render ineffective assistance. Held:
The habeas court did not abuse its discretion in denying the petition for certification to appeal from the denial of the petitioner’s petition for a writ of habeas corpus, as the petitioner failed to meet his burden of demonstrating that the substantive claims of error raised were debatable among jurists of reason, that a court could have resolved the issues in a different manner, or that the questions raised were adequate to deserve encouragement to proceed further.
The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner’s claim that M had provided constitutionally ineffective assistance by failing to investigate and to present evidence at trial regarding a potential third-party culpability defense, as, at the habeas trial, the petitioner failed to call the three individuals who previously had given sworn statements to the police suggesting that a third party was responsible for the killing of the victim or to present any evidence supporting his claim that there was a reasonably probability that the result of his criminal proceedings would have been different had M investigated further or called any of those individuals to testify, and, accordingly, the petitioner did not meet his burden of demonstrating that he was prejudiced by M’s actions or inactions.
The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner’s claim that the state had failed to disclose certain material and exculpatory evidence in violation of Brady v. Maryland (373 U.S. 83), as the petitioner could not demonstrate as a matter of law that the testimony the state failed to disclose was constitutionally material, and, thus, there was not a reasonable probability of a different result had the undisclosed evidence been presented to the jury.
Argued March 23—officially released October 13, 2026
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Santiago v. Commissioner of Correction
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, 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.
Chad L. Edgar, assigned counsel, for the appellant
(petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attorney,
and Marc G. Ramia, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
WESTBROOK, J. The petitioner, Victor Santiago,
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 habeas court (1) abused its discretion
by denying his petition for certification to appeal and
(2) improperly rejected his claims that (a) his criminal
trial counsel provided ineffective assistance by failing
to investigate and to present evidence of possible thirdparty culpability and (b) his right to due process under
the fourteenth amendment to the United States constitution was violated because the state failed to disclose
certain exculpatory evidence in accordance with Brady
v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963). We conclude that the petitioner has failed
to present any issue on appeal that is debatable among
jurists of reason, amenable to a different resolution or
deserves encouragement to proceed further and, thus,
that the habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal. Accordingly, we dismiss the appeal.
This court previously set forth the relevant facts and
procedural history pertaining to the petitioner’s arrest
Santiago v. Commissioner of Correction
and conviction. See State v. Santiago, 187 Conn. App.
350, 202 A.3d 405, cert. denied, 331 Conn. 902, 201
A.3d 403 (2019). “In the early morning hours of April 11,
1998, Wilfred Morales was shot and killed near his home
on Middle Street in Waterbury when he was returning
there from a bar he owned on Baldwin Street. Morales’
murder remained unsolved for twelve years, until the
[petitioner’s] estranged wife, Damaris Algarin-Santiago
(Algarin), provided the police with a written statement
implicating the [petitioner] and his brothers, Thomas
Bonilla and Noel Bermudez, in the crime.
“Algarin was the state’s chief witness in its prosecution
of the [petitioner]. She and the [petitioner] had been in a relationship from 1993 until 2008, had married in 2004
so that she would not be able to testify against him concerning Morales’ murder, and had four children together.
During Algarin’s relationship with the [petitioner], he
was extremely abusive toward her and, as a result of this
abuse, she had come to fear him.
“On April 10, 1998, Bonilla was released from prison.
The [petitioner], Bonilla, and Bermudez went out that
night to celebrate Bonilla’s release, while Algarin stayed home and later went to sleep. At approximately 3 a.m. on
April 11, 1998, Algarin was awakened by the [petitioner]
and told to go downstairs. Upon entering the downstairs
living room, she saw the [petitioner] and Bonilla sorting
cash and checks on the coffee table. She also saw a blue
leather bank bag. Bermudez was in the kitchen disassembling guns, and Bonilla threatened to kill her if she
said anything about what she was seeing or hearing.
Bermudez then told her that he had shot Morales because
he thought Morales had a gun and because Morales had
previously shot the [petitioner].
“The [petitioner] and his brothers proceeded to destroy
the evidence. They wiped the guns with baby oil as they
broke them down and placed them into bags. They also
burned the checks in the kitchen sink and burned the
bank bag and their clothes in a container in the back of
the house. Bonilla and Bermudez then went to a car wash
Santiago v. Commissioner of Correction
to clean any gun residue from the vehicle they had used
that night and, after they returned from the car wash,
the [petitioner] took Algarin to dispose of the guns which were placed in three separate bags. While they were
disposing of the guns, Algarin asked the [petitioner]
about the murder. He told her that he had been stalking Morales and planning to rob him because he knew
that Morales always carried cash on him at the end of
the night, that Bermudez and Bonilla had waited in the
bushes for Morales while he waited in the car, and that
Bermudez had shot Morales.
“When they returned to the house, the [petitioner] and
his brothers formulated an alibi. This alibi was that they were all together at their mother’s house celebrating
Bonilla’s release from prison and sharing a Good Friday
meal. Algarin stuck to this story for the next twelve
years, despite repeated questioning by the Waterbury
police. In 2009, however, Algarin began dating Luis
Maldonado, whom she told about Morales’ murder. In
April, 2010, when Maldonado had some legal trouble
of his own, he told the police what Algarin had told him
about Morales’ murder. When confronted by the police,
Algarin finally admitted that the [petitioner] and his
brothers had killed Morales, and she provided the police
with a written statement detailing everything she knew
about the murder.
“The state thereafter charged the [petitioner] with
murder, in violation of § 53a-54a (a), and felony murder, in violation of General Statutes § 53a-54c. The jury
found the [petitioner] guilty of murder and not guilty
of felony murder, and the court sentenced [him] to sixty
years of incarceration.”1 Id., 352–54. The petitioner
1
As noted by the respondent, the Commissioner of Correction, in his appellate brief, Bermudez currently is serving a fifty-one year prison sentence for manslaughter and assault unrelated to the death of Morales; see State v. Bermudez, 95 Conn. App. 577, 580–81 and n.1, 897 A.2d 661 (2006); and Bonilla is currently serving a sixty year prison sentence for murder as an accessory and felony murder with respect to his role in Morales’ death. See State v. Bonilla, 317 Conn. 758, 761–62, 120 A.3d 481 (2015).
Santiago v. Commissioner of Correction
appealed from the judgment of conviction, which this
court affirmed.2 Id., 351–52.
The petitioner commenced the underlying habeas
action in 2017. The operative second amended petition was filed on December 19, 2023, and contained five
counts. Count one alleged various instances of ineffective assistance by the petitioner’s criminal trial counsel, Attorney Michael Moscowitz, including that Moscowitz
had failed to adequately investigate and to pursue a thirdparty culpability defense.3 Count two alleged ineffective
assistance of the petitioner’s appellate counsel, Attorney Katherine Essington. Counts three through five asserted
that the petitioner’s right to due process and a fair trial were violated because the state failed to disclose certain material and exculpatory evidence. Specifically, count
three alleged that the state had failed to timely disclose an internal affairs investigation and report that contained references to Officer Marshall Robinson, whom the
state had called as an expert witness at the petitioner’s
criminal trial.4 Count four alleged that the state had
failed to timely disclose evidence that Detective George
Tirado, who was one of the lead detectives in the Morales
murder investigation, previously had been arrested and
convicted on federal charges of participating in a scheme
2
We note that, in light of improper comments that the prosecutor had made during closing argument to the jury, this court reversed an earlier judgment of conviction obtained by the state against the petitioner on these same facts and remanded the case for a new trial. See State v. Santiago, 143 Conn. App. 26, 28, 66 A.3d 520 (2013) (invoking inherent supervisory authority over administration of justice because prosecutor engaged in deliberate pattern of similar improper conduct in numerous unrelated cases and nothing short of reversal of conviction was likely to deter future prosecutorial impropriety).
3
Following the close of evidence at the habeas trial, the petitioner withdrew some of his allegations of ineffective assistance of counsel. The only allegation of ineffective assistance pursued by the petitioner in the present appeal relates to Moscowitz’ alleged failure to investigate and to pursue a third-party culpability defense.
4
Robinson was not the subject of the internal affairs investigation. The petitioner later withdrew count three following the close of evidence at the habeas trial, and, accordingly, it is not necessary to elaborate further regarding this claim.
Santiago v. Commissioner of Correction
to direct illegal campaign contributions to a candidate
for the United States House of Representatives. Count
five alleged in relevant part that the state was aware
of, but failed to disclose, testimony given during a suppression hearing in an unrelated criminal matter by a
witness, Dontay Early, who claimed that Tirado and
another detective had tried to coerce Early into providing a statement implicating the petitioner in the shooting
of Morales. The respondent, the Commissioner of Correction, filed a return leaving the petitioner to his proof.
The habeas court, Streeto, J., conducted a two day trial
on September 4 and 5, 2024. The court heard testimony
from Early, Essington, and Moscowitz. On September
30, 2024, the court issued a memorandum of decision
concluding that the petitioner had failed to sustain his
burden of proving any of his claims of ineffective assistance by Moscowitz or Essington, or any claimed due
process/Brady violation. Accordingly, the court denied
the petition.
With respect to the claims now before us on appeal,
the court reasoned as follows. The court concluded that
the petitioner had failed to demonstrate either deficient
performance or prejudice with respect to his assertion
that Moscowitz had provided ineffective assistance by
failing to investigate and to present evidence of possible third-party culpability. The court credited Moscowitz’
testimony that he had not pursued a third-party culpability defense because his investigation had shown that
the only other people involved in the crime were the petitioner’s brothers. Moscowitz also testified that he was
familiar with the legal standard for the admissibility of
third-party culpability evidence and did not believe it was a viable defense in the present case. Instead, Moscowitz
elected to focus on discrediting the state’s primary witness, Algarin, by exposing motive, bias, and credibility
issues. The court concluded that Moscowitz’ choice of
defense strategy was a reasonable tactical decision under
the circumstances. With respect to the three individuals
who had given statements to the police identifying a third
Santiago v. Commissioner of Correction
party, Larry Hall, as Morales’ murderer, Moscowitz testified that all three were incarcerated inmates who may
have agreed to implicate Hall only for their own benefit
and likely would have retracted or changed that narrative if called to testify. The habeas court concluded that Moscowitz “justifiably and reasonably did not put much
stock into their stories.” In short, the court rejected the petitioner’s claim that Moscowitz’ choice not to pursue a
third-party culpability claim centered on Hall amounted
to an unreasonable trial strategy and, thus, deficient
performance.
Moreover, the habeas court concluded that the petitioner also failed to demonstrate how he was prejudiced
because the trial judge had been “very skeptical and dismissive of Moscowitz’ arguments regarding third-party
culpability” and the petitioner had failed to show that
the court would have allowed Moscowitz to introduce
evidence of Hall as a third-party culprit, particularly in light of the “rather tough legal standard for the admissibility of such evidence.” The habeas court stated that
“[t]he absence of any evidence that the court would have
permitted third-party culpability evidence is fatal to
the petitioner’s ability to prove prejudice on this issue.”
The habeas court also found that the petitioner had
failed to prove his claim that the state committed a Brady violation by failing to disclose statements made by Early
in an unrelated action that Tirado had attempted to
coerce Early into signing a statement implicating the
petitioner in Morales’ shooting. The court noted that
Early made clear during his habeas trial testimony that
he had made the undisclosed statements during a suppression hearing at his own 2012 criminal trial. The court relied on Practice Book § 40-13 (a), which governs the disclosure obligations of the state and provides in relevant
part that the state has an obligation to disclose to the
petitioner the names and addresses of all witnesses that
it intends to call, and on Practice Book § 40-13A, which
provides that the state also must disclose to the petitioner any statements of those witnesses that are “within the
Santiago v. Commissioner of Correction
possession of the prosecuting authority and his or her
agents . . . .” The court reasoned that, “[b]ecause the state did not call or intend to call [Early] as a witness” at the criminal trial, “it had no obligation to disclose his prior testimony,” which the court believed would not have
been admissible in the absence of his participation as a
witness. The court also concluded that transcriptions of a person’s testimony are not truly Brady material because
they are not in the state’s possession and otherwise are
readily available to the defense. The court stated: “If . . . the petitioner thought that Early’s prior testimony from
an unrelated proceeding, which was found not credible
by the trial court, would have been useful to his defense, he was welcome to order a transcript of that testimony
and call Early as a witness.” The court also stated that
the state had no obligation to perform the petitioner’s
investigation for him, including by obtaining documents
outside its direct control that the petitioner could have
obtained independently.
The petitioner filed a petition for certification to
appeal, which the court denied. This appeal followed.
I
As a threshold matter, the petitioner claims that the
habeas court improperly denied his petition for certification to appeal from the denial of his petition for a writ
of habeas corpus. We disagree.
“Our standard of review is well established. Faced with
the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas
court’s ruling constituted an abuse of discretion. . . . If the petitioner succeeds in surmounting that hurdle, the
petitioner must then demonstrate that the judgment of
the habeas court should be reversed on its 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. . . .
Santiago v. Commissioner of Correction
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. . . . In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . for determining the propriety
of the habeas court’s denial of the petition for certification.” (Citations omitted; internal quotation marks
omitted.) Wilson v. Commissioner of Correction, 240
Conn. App. 118, 123–24, 362 A.3d 884 (2026); see also
Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994) (adopting as state law criteria identified by
United States Supreme Court in Lozada v. Deeds, 498
U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956
(1991), as appropriate standard for determining whether
habeas court abused its discretion in denying certification to appeal).
For the reasons set forth in parts II and III of this
opinion, we conclude, on the basis of our review of the
record and applicable legal principles, that the petitioner has failed to meet his burden on appeal of demonstrating
that the substantive claims of error raised are debatable among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions
raised are adequate to deserve encouragement to proceed
further. Accordingly, we also conclude that the habeas
court did not abuse its discretion in denying the petition for certification to appeal.
II
The petitioner first claims that the habeas court
improperly rejected his claim that Moskowitz provided
constitutionally ineffective assistance by failing to
investigate and to present evidence at trial regarding a
potential third-party culpability defense. Specifically,
the petitioner alleged in the operative amended petition
that Moskowitz had failed to adequately investigate,
Santiago v. Commissioner of Correction
prepare, and present the testimony of Johnny Nieves,
Danny Garcia, and Jose Rivera, each of whom had given
sworn statements to the police suggesting that someone
other than the petitioner or his brothers was responsible
for Morales’ murder. We conclude that the petitioner
has failed to meet his burden on appeal with respect to
this claim.
The following additional facts are relevant to our
consideration of the petitioner’s claim. Prior to the
petitioner’s retrial; see footnote 2 of this opinion; Moscowitz received court filings and transcripts from the
petitioner’s first trial.5 Among the materials that he had received were statements given to the police by Nieves,
Garcia, and Rivera.6 Moscowitz did not send an investigator to speak with the three individuals or otherwise
investigate the credibility of their statements. At the
habeas trial, Moscowitz testified that, other than the
petitioner’s two brothers, he did not believe that thirdparty culpability was at issue in the petitioner’s case, and he could not recall offering any third-party culpability
evidence at the trial. Moskowitz acknowledged receiving
discovery materials prior to trial that included police
interviews but had no independent recollection of having possessed any statements given by Nieves, Garcia,
or Rivera to the police. A review of the statements did
not refresh Moskowitz’ recollection. Moskowitz did not
know whether Nieves, Rivera, and Garcia were incarcerated at the time, and he did not subpoena them to testify
at the petitioner’s criminal trial. Moskowitz also could
not recall the name Larry Hall or whether the police had
spoken to Hall regarding the Morales murder.
We next set forth our standard of review and well established legal principles. “A criminal defendant’s right to
5
Moscowitz did not represent the petitioner in his first criminal trial. 6
At the habeas trial, the court admitted into evidence a letter that indicated that the statements by Nieves, Garcia, and Rivera to the police were disclosed to Moskowitz on September 12, 2014. The statements themselves were also admitted as full exhibits, not for their truth but to show that they existed and how Moscowitz did or did not use them in the course of his representation of the petitioner.
Santiago v. Commissioner of Correction
the effective assistance of counsel extends through the
first appeal of right and 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 twopronged 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. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may [reject] a petitioner’s claim if he fails to meet either prong. . . .
“On appeal, [a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts constituted a violation of the petitioner’s rights [to the effective assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts of [the] case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous
standard.” (Citations omitted; footnote omitted; internal
quotation marks omitted.) Jordan v. Commissioner of
Correction, 197 Conn. App. 822, 829–31, 234 A.3d 78
(2020), aff’d, 341 Conn. 279, 267 A.3d 120 (2021).
It is not necessary in the present case for us to decide
whether Moskowitz’ failure to investigate or to pursue a
third-party culpability defense on the basis of the police statements by Nieves, Garcia, or Rivera amounted to
deficient performance because, assuming without deciding that it was, on the existing record, the petitioner has
Santiago v. Commissioner of Correction
not met his additional burden of demonstrating that
he was prejudiced by Moskowitz’ actions or inactions.
The petitioner did not call Nieves, Garcia, or Rivera to
testify at the habeas trial regarding their prior statements or the involvement of Hall or another party in
the killing of Morales. The petitioner provided no other
evidentiary basis for determining the dispositive issue;
namely, whether there was a reasonable probability that,
if Moskowitz had investigated further and called Nieves,
Garcia, or Rivera to testify, that would have changed the
result of the criminal proceedings.7 The record is silent as to whether any of the three were available to testify at the criminal trial or would have testified if called. Moreover, we are left to speculate about what they would have said
if they had testified, including whether their testimony
would have been consistent with their prior statements
to the police or whether they would have recanted.
We frequently and consistently have held that, if a
claim of ineffective assistance of counsel is premised on
counsel’s failure to investigate or call a witness at the
petitioner’s criminal trial, the failure to call that witness to testify at the habeas trial will often prove fatal to the claim because the petitioner bears the burden of
establishing prejudice, which usually cannot be properly
assessed without the benefit of the witness’ testimony.
7
A transcript of testimony that Rivera gave at a habeas trial for the petitioner’s brother, Bonilla, who had raised a similar ineffective assistance claim against his criminal trial counsel, was entered into evidence over the objection of the respondent. Rivera had testified at Bonilla’s habeas trial that Hall, whom he knew through their drug dealing business, had told Rivera that he had murdered Morales because he needed to make some money. According to Rivera, Hall purportedly gave no other details about Morales’ murder other than that he had killed him. The petitioner suggests that, because the habeas court did not mention this evidence in rejecting the petitioner’s claim, the court must have neglected to take it into account. Even with this transcript in evidence, however, it remains that there is nothing in the record indicating that Rivera would have provided the same testimony if he had been called by the petitioner at the petitioner’s habeas trial. Moreover, without Rivera’s testimony at the habeas trial, the habeas court lacked any basis for assessing the credibility of Rivera as a witness or what effect his testimony might have had on the outcome of the petitioner’s criminal trial.
Santiago v. Commissioner of Correction
See, e.g., Benitez v. Commissioner of Correction, 197
Conn. App. 344, 351, 231 A.3d 1285 (“[i]t is axiomatic
that a habeas petitioner who claims prejudice based on
counsel’s alleged failure to present helpful evidence from a particular witness, must call that witness to testify
before the habeas court or otherwise prove what the witness would or could have stated had he been questioned
at trial”), cert. denied, 335 Conn. 924, 233 A.3d 1091
(2020); see also St. John v. Commissioner of Correction,
144 Conn. App. 724, 730, 73 A.3d 844 (habeas court
properly concluded that petitioner had failed to satisfy
prejudice prong of Strickland test because petitioner
failed to present expert witness at habeas trial), cert.
denied, 310 Conn. 928, 78 A.3d 146 (2013); Lambert
v. Commissioner of Correction, 100 Conn. App. 325,
327–28, 918 A.2d 281 (prejudice was not established
because petitioner failed to call purportedly important
expert and alibi witnesses at habeas trial or to offer other evidence as to what they would have testified), cert.
denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v.
Commissioner of Correction, 61 Conn. App. 555, 557, 764
A.2d 1291 (2001) (petitioner could not establish that trial counsel was ineffective for failing to investigate certain witnesses because witnesses did not testify at habeas
trial and no other evidence was introduced regarding
how their testimony might have supported his claims).
On the basis of the record before us, we cannot conclude
that testimony by Nieves, Garcia, or Rivera would have
had any meaningful effect on the verdict at the petitioner’s criminal trial. As a result, the petitioner failed to sustain his burden of showing that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, supra, 466 U.S.
694. Because the petitioner has not demonstrated that
it is debatable among jurists of reason that the outcome
of his trial would have been different in the absence of
trial counsel’s failure to call one or more of the witnesses in support of a third-party culpability defense, that the
issue is amenable to a different resolution, or that it
Santiago v. Commissioner of Correction
deserves encouragement to proceed further, the habeas
court did not abuse its discretion in denying the petition for certification to appeal as to this claim.
III
The petitioner next claims that the habeas court
improperly rejected his freestanding due process claim
in which he asserted that the state improperly had failed
to disclose certain material and exculpatory evidence in
violation of Brady v. Maryland, supra, 373 U.S. 87.8
Again, the petitioner has failed to meet his threshold
burden on appeal with respect to this claim.
The following facts and procedural history are relevant
to our discussion of the petitioner’s Brady violation
claim. As previously stated, the petitioner called Early
as a witness during the underlying habeas trial. Early
testified that, during a police investigation into Early’s role in an unrelated murder, Tirado and another detective had subjected him to physical abuse and duress and
sought to coerce him into giving a statement implicating the petitioner and his brothers in Morales’ murder
as well as a confession regarding his own crimes. Early
further testified that he previously had conveyed this
information in testimony that he had given at a suppression hearing during his own criminal prosecution
and that the prosecutor in his case was the same one who
represented the state at the petitioner’s second criminal
trial. The state never disclosed Early’s testimony at the
suppression hearing or its content to the petitioner or his defense counsel prior to the petitioner’s criminal trial.9 Early did not testify at the petitioner’s criminal trial.
The petitioner claimed before the habeas court, and
repeats on appeal, that the state had an obligation to
8
“In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as freestanding.” (Internal quotation marks omitted.) Medina v. Commissioner of Correction, 239 Conn. App. 666, 675 n.10, 360 A.3d 1229 (2026).
9
It is not clear from the record before us how the petitioner first learned about Early’s testimony.
Santiago v. Commissioner of Correction
inform him of Early’s testimony at the suppression hearing because it would have supported his theory that
the police always intended to frame him for Morales’
murder, and Early’s testimony would have helped to
demonstrate that the police were willing to coerce witnesses to do so, including potentially Algarin, who was
the state’s principal witness against him. The petitioner’s counsel argued that Early’s testimony was exculpatory
evidence under Brady because it could have been used
to demonstrate police bias and to undermine the credibility of Algarin’s account of the petitioner’s involvement in Morales’ murder. The respondent’s counsel
countered that Early’s testimony regarding the police
was wholly unsubstantiated and was found not credible
by the court conducting the suppression hearing and it
was not entirely clear from the record “what items or
materials were in existence that should have been turned
over.” For the reasons set forth earlier in this opinion,
the habeas court rejected the petitioner’s Brady claim,
determining that the state had no obligation to disclose
Early’s prior testimony to the petitioner.
“In Brady, the United States Supreme Court held that
[t]he defendant has a right to the disclosure of exculpatory evidence under the due process [clause] of . . . [the fourteenth amendment to] the United States constitution
. . . . In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence
after a request by the defense; (2) that the evidence was
favorable to the defense; and (3) that the evidence was
material. . . . It is well established that [i]mpeachment
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. Andres C., 349 Conn. 300, 329, 315 A.3d 1014,
cert. denied, N U.S. N , 145 S. Ct. 602, 220 L. Ed. 2d
236 (2024).
“Whether [a petitioner has been] deprived of his due
process rights due to a Brady violation is a question
of law, to which we grant plenary review.” (Internal
Santiago v. Commissioner of Correction
quotation marks omitted.) Jones v. Commissioner of
Correction, 212 Conn. App. 117, 142, 274 A.3d 237, cert.
denied, 343 Conn. 933, 276 A.3d 975 (2022). “Under the
last Brady prong, the evidence must have been material
to the case, such that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. . . . It
is not enough for the defendant to show that the undisclosed evidence would have allowed the defense to weaken
or destroy a particular prosecution witness or item of
evidence to which the undisclosed evidence relates.”
(Internal quotation marks omitted.) Id., 142–43.10 As
recently stated by our Supreme Court, “[e]vidence is
material [for Brady purposes] only when there is a reasonable probability of a different result if the evidence
had been disclosed. . . . The mere possibility that an item of disclosed evidence might have helped the defense or
might have affected the outcome of the trial, however,
does not establish materiality . . . . A reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial. . . . When a conviction depends entirely upon the testimony of a certain witness
. . . information affecting their credibility is material in the constitutional sense . . . . However, when the state’s case is otherwise strong and the witness’ testimony, even
if significant, is not dispositive, nondisclosure will not undermine confidence in the jury’s verdict.” (Citations
omitted; emphasis altered; internal quotation marks
10
The state’s obligation to disclose exculpatory information or material to a criminal defendant is codified at General Statutes § 54-86c, which provides in relevant part: “(a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant. . . .” See also Practice Book § 40-11 et seq. (detailing items and information that prosecuting authority is required to disclose to criminal defendants).
Santiago v. Commissioner of Correction
omitted.) Vega v. Commissioner of Correction, 354 Conn.
437, 456–57, 354 A.3d 151 (2026).
In the present case, the habeas court’s reason for rejecting the petitioner’s claim of a Brady violation premised
on the state’s failure to disclose Early’s testimony at
the suppression hearing was that Early’s testimony was
not Brady material, in part because his testimony was
publicly available to both the state and the petitioner.11 On appeal, the respondent asserts that he is “unable to
defend” the habeas court’s determination that Early’s
testimony was equally available to both sides, but argues
in the alternative that the petitioner nonetheless cannot
prevail on his Brady claim because he cannot demonstrate
as a matter of law that Early’s testimony meets the materiality prong of Brady. We agree with the respondent.
Having reviewed the record and the arguments of the
parties, we are persuaded that there is not a reasonable
probability that a disclosure of Early’s prior testimony
would have changed the outcome of the petitioner’s
criminal trial. First, the habeas court expressly stated
11
The petitioner aptly acknowledges in his appellate brief that the state’s Brady obligations do not require it to seek out and obtain exculpatory information for a criminal defendant, particularly if such information is in the public domain and, thus, is as accessible to the defendant as it is to the state. “[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.” (Emphasis added; internal quotation marks omitted.) State v. Giovanni P., 155 Conn. App. 322, 343, 110 A.3d 442 (citing State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986) (“any information bearing on [credibility of witness] was as available to the defendant as it was to the state, or could have been discovered through reasonably diligent research”)), cert. denied, 316 Conn. 909, 111 A.3d 883 (2015); see also State v. Richard W., 115 Conn. App. 124, 143, 971 A.2d 810 (there was no duty to disclose complaints filed in federal actions because they “were a matter of public record to which the state and the defendant had equal access”), cert. denied, 293 Conn. 917, 979 A.2d 493 (2009). Nothing in the record before this court suggests that the petitioner or his defense counsel was aware of Early’s prior testimony or whether reasonably diligent research would have uncovered it.
Santiago v. Commissioner of Correction
that it did not credit Early’s testimony at the habeas
trial that he had been subjected to physical abuse or
violence by the police. This court will not second-guess
a habeas court’s credibility determinations. See Barlow
v. Commissioner of Correction, 343 Conn. 347, 368,
273 A.3d 680 (2022); see also Mack v. Commissioner
of Correction, 239 Conn. App. 324, 333, 360 A.3d 119
(2026) (“[i]t is simply not the role of this court on appeal to second-guess credibility determinations made by the
habeas court” (internal quotation marks omitted)). There
is also no other evidence in the record that supports or
substantiates Early’s claim that the police physically
abused him; it appears no complaint was ever filed, and
the matter was never investigated. Moreover, like the
habeas court, the court that heard Early’s testimony at
the suppression hearing also did not credit his testimony
that he had been subjected to a violent police interrogation. See State v. Early, 152 Conn. App. 466, 471, 96
A.3d 651, cert. denied, 314 Conn. 939, 102 A.3d 1113
(2014).12 Accordingly, on this record, we agree with the
respondent that Early’s testimony that the police had
attempted to coerce a statement from him implicating
the petitioner and his brothers in the killing of Morales
was not reasonably likely to have been believed by the
jury and, thus, would not have altered the verdict. In
other words, the petitioner has failed to establish any
reason to believe that, had Early testified before the jury at the petitioner’s retrial, the jury would have reached a different conclusion regarding Early’s credibility.
12
The habeas court took judicial notice of the facts set forth in State v. Early, supra, 152 Conn. App. 468, which was Early’s direct appeal from his conviction of murder. In its oral ruling on the motion to suppress in that matter, the court had stated the following: “At the suppression hearing, [Early] testified that his oral and written statements on [September 17, 2010] were coerced from him through physical force committed by Detective Tirado and [Sergeant Michael] Slavin. [Early] testified that he was tased by the detectives, kneed in the groin, and punched in the head. [Early] testified that these assaults occurred, not in an interview room, but in the middle of the Waterbury Police Department detective bureau in front of numerous witnesses. The court, again, does not credit this testimony, which is uncorroborated by any reliable evidence.” (Internal quotation marks omitted.) Id., 472–73.
Santiago v. Commissioner of Correction
As a result, we agree with the respondent that any
suggestion that Early’s testimony would have helped to
discredit Algarin in the eyes of the jurors is simply not
supported by the record viewed as a whole and amounts
to pure speculation, which cannot establish materiality
in the constitutional sense, i.e., a reasonable probability of a different result had the undisclosed evidence
been presented to the jury. See Vega v. Commissioner
of Correction, supra, 354 Conn. 456; see also Madera v.
Commissioner of Correction, 221 Conn. App. 546, 556,
302 A.3d 910 (explaining that, in assessing under Strickland’s prejudice prong whether there was likelihood of
different trial result, evidence “must be substantial,
not just conceivable” and petitioner must meet burden
“not by use of speculation but by demonstrable realities”
(internal quotation marks omitted)), cert. denied, 348
Conn. 928, 305 A.3d 265 (2023). Although the state’s
case certainly turned in large part on Algarin’s credibility, we are unconvinced that Early’s unsubstantiated police coercion testimony would have undermined
Algarin’s testimony so as to change the jury’s verdict.
There was evidence before the jury that Algarin had
implicated the petitioner and his brothers in Morales’
murder years prior to her giving any statement to the
police. For example, because she feared “she might be
killed,” Algarin had spoken to an attorney about Morales’
murder, conveying essentially the same information that
she later gave to the police and testified to at trial. On the advice of that attorney, Algarin also later confided in one of her coworkers about the shooting and the petitioner’s
request that she go with him to get rid of the gun used
in the murder. That coworker testified at the criminal
trial, thereby corroborating Algarin’s testimony and
statement to the police and rendering far less likely any
inference by the jury that Algarin’s statement to the
police was the result of police coercion. After all, even
if the jury had been presented with and believed Early’s
testimony, the account that Algarin gave to the attorney
and her coworker was essentially the same as the statement she later gave to the police, which she did only after
Santiago v. Commissioner of Correction
Maldanado had shared with the police what Algarin had
told him about Morales’ killing.
As the respondent aptly explains in his appellate brief,
“Algarin’s testimony had a further ring of truth because
it was independently corroborated in important aspects.
Her description of a blue, zippered bank bag containing
cash and Social Security checks was corroborated by Ivan
Gonzalez, who testified that Morales, his employer, habitually used just such a bag to carry his nightly receipts,
which often included business or government checks
that had been cashed for customers. . . . The evidence
established without contravention that the police had
withheld information regarding this distinctive bank bag
and its contents from the public and from Algarin. . . .
Algarin thus could only have obtained this information
from a participant in the crime.” (Citations omitted.)
Having considered Early’s suppressed testimony in light
of all the evidence before the jury, we are not persuaded
that there is a reasonable probability of a different result if that evidence had been disclosed to the jury. Although
the petitioner’s conviction depended in significant part
on the jury crediting the testimony of Algarin, for the
reasons provided, we cannot conclude that the nondisclosure undermines our confidence in the jury’s verdict.
See Vega v. Commissioner of Correction, supra, 354
Conn. 456–57.
In sum, the petitioner has failed to demonstrate that
he was prejudiced in connection with his claim that Moskowitz provided constitutionally deficient performance
by failing to investigate and to call witnesses to establish a third-party culpability defense. Further, he failed
to prove that Early’s testimony was constitutionally
material such that the state’s failure to disclose it to the petitioner prior to trial amounted to a Brady violation.
Because the petitioner’s claims do not present issues that are debatable by jurists of reason, could be resolved in a different manner, or deserve encouragement to proceed
further, the habeas court did not abuse its discretion in
denying the petition for certification to appeal.
Santiago v. Commissioner of Correction
The appeal is dismissed.
In this opinion the other judges concurred.