Eddie Orellana v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

On June 8, 2007, the petitioner, Eddie Orellana, filed a petition for a writ of habeas corpus, which was amended on April 15, 2010.   In his amended petition, the petitioner claims that he was denied the effective assistance of trial and appellate counsel in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the constitution of Connecticut in a number of ways, including, but not limited to, the following:  trial counsel failed to request an instruction limiting the jury's consideration of prior consistent statements made by Jessica Jussino to their impact on her credibility;  trial counsel failed to preserve the claim for review on appeal by not challenging the trial court's failure to give, sua sponte, such a limiting instruction;  trial counsel did not investigate into the state's files and police files on Jusino;  appellate counsel failed to raise on appeal the claim that the trial court erred in failing to provide a limiting instruction after it permitted Jusino's prior consistent statements to be admitted into evidence;  and appellate counsel failed to present an exceptional basis for the review of this claim.   The petitioner further alleges that his due process rights were violated in that the prosecutor failed to disclose to trial counsel that Jusino received a lenient sentence in exchange for her favorable testimony in the petitioner's case.   For reasons stated more fully below, the petition is denied.

The matter came to trial on July 15, 2010.   The Court heard testimony from the petitioner, Attorney William Westcott, who qualified as an expert in appellate criminal law, Christopher Chute, a detective in the New Britain police department, Attorney Paul Rotiroti, the prosecutor in the petitioner's criminal case, Attorney James Streeto, the petitioner's appellate counsel, and Attorney Matthew Costello, the petitioner's trial counsel.   The petitioner entered into evidence the transcripts of his criminal trial, the appellate brief and appellate decision, a letter from the respondent to the petitioner's counsel with attached information regarding the sentencing of Jusino and the curriculum vitae of Attorney Westcott.   The respondent proferred petitioner's long form information and sentence rendered, two disclosure motions filed by Attorney Costello and a transcript of the sentencing hearing.   The petitioner and the respondent filed post-trial briefs on petitioner filed a reply to the respondent's post-trial brief.

FINDINGS OF FACT

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

1. The petitioner was the defendant in a criminal case in the judicial district of New Britain under docket number CR02–201667.   He was charged with possession of narcotics with intent to sell by a non-drug dependent person in violation of General Statutes § 21a–278(b), conspiracy to sell narcotics by a non-drug dependent person in violation of General Statutes §§ 53a–48 and 21a–278(b) and with possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a–278a(b).

2. As stated by the Appellate Court, the jury reasonably could have found the following facts regarding the underlying offenses.  “Prior to April 15, 2002, Jessica Jusino had assisted Christopher Chute, a detective in the narcotics enforcement bureau of the New Britain police department, as a confidential informant in narcotics arrests.   At approximately noon on April 15, 2002, Jusino contacted Chute and offered to arrange to have heroin delivered to a specific location in New Britain.   Chute met with Jusino at approximately 4:30 that afternoon.   By means of her cellular telephone, Jusino subsequently contacted the defendant and arranged for him to deliver 350 packets of heroin to her.   The defendant had sold heroin to Jusino, in a similar manner, on prior occasions.

3. “Jusino informed Chute that two Hispanic men, traveling in an older model, gold colored, four door Nissan, would deliver the heroin between 5:15 and 5:30 that evening to either the corner of Park and Stanley Streets or to a gasoline station at the intersection of East Main and Stanley Streets.   Chute and other law enforcement personnel proceeded to those areas and began conducting surveillance.   From his vantage point near the intersection of Park and Stanley Streets, Chute observed a Nissan, matching the description provided to him by Jusino, pass by between 5:15 and 5:30.   The automobile was occupied by two Hispanic men.   Upon seeing the automobile, Jusino, who was accompanying Chute, identified it as the vehicle carrying the heroin.   For a short while, Chute followed the automobile in an unmarked police automobile.   Chute described the automobile to his fellow officers, who were waiting nearby, and notified them of the automobile's location.   Police officers stopped the automobile after it made a U-turn and approached the gasoline station at the intersection of East Main and Stanley Streets, one of the alternate locations described by Jusino.   The automobile was less than 1,500 feet from a public housing project.

4. “When police officers approached the automobile, they discovered the defendant in the driver's seat and Pablo Perez in the passenger seat.   Raymond Gzegorzek, an officer with the New Britain police department, observed Perez leaning over as if to hide something in the automobile.   Police later had to remove Perez forcibly from the automobile.   The defendant was in ‘possession of $1,241 in cash.   A white shopping bag, partially hidden under the passenger's seat of the vehicle, was found to contain 350 packets of heroin.   The heroin had a street value of approximately $3,500.   The packets of heroin were separated into groups of ten, secured together with elastic bands.”   State v. Orellana, 89 Conn.App. 71, 73–75, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

5. After a jury trial, the petitioner was convicted as charged and sentenced to a total effective sentence of thirteen years to serve.

6. Attorney Costello represented the petitioner at trial.   He has been practicing since 1995.   By 2002, he had three years experience as a criminal defense attorney.

7. The petitioner unsuccessfully appealed his convictions.   See State v. Orellana, supra, 89 Conn.App. 71.

8. Attorney Streeto represented the petitioner on appeal.   He has been practicing in the area of appellate law since 1988.

9. Additional facts will be discussed as necessary.

DISCUSSION

Ineffective Assistance of Trial Counsel

In count one of his amended petition, the petitioner alleges that his trial counsel rendered ineffective assistance by (1) failing to request a limiting instruction or take an exception to the trial court's failure to give, sua sponte, a limiting instruction regarding the prior consistent statements that Jusino made to Chute;  (2) failing to preserve this issue for appeal;  and (3) failing to investigate Jusino.¹

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction ․ That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense ․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable ․ Because both prongs ․ must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.”  (Internal quotation marks omitted.)   Kearney v. Commissioner of Correction, 113 Conn.App. 223, 228–29, 965 A.2d 608 (2009).   To prove deficient performance, the petitioner must show that defense counsel's representation “fell below an objective standard of reasonableness ․” Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).   To prove prejudice, the petitioner must establish 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.)  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).

The petitioner first claims that Attorney Costello should have requested a limiting instruction or taken an exception to the trial court's failure to give, sua sponte, a limiting instruction regarding Jusino's prior consistent statements to Chute.   Prior to Jusino's testimony at the petitioner's criminal trial, the trial court held that the state could elicit testimony from her concerning her prior drug transactions with the petitioner as evidence of the petitioner's knowledge and intent.²  Accordingly, during direct examination, Jusino testified that she had previously purchased drugs from the petitioner on three to four different occasions.³  As noted by the Appellate Court, “by means of his questioning [of Jusino on cross-examination and recross-examination], the [petitioner] suggested that Jusino recently contrived her statements concerning her narcotic purchase from the [petitioner] prior to April 15, 2002.   The [petitioner] did so by belaboring the point that Jusino allegedly failed to disclose details about those transactions to Chute on April 15, 2002, but that she disclosed such details at the time of trial.   Furthermore, the [petitioner] strongly implied that Jusino's testimony at trial in that regard was the result of self-interest.”  State v. Orellana, supra, 89 Conn.App. 94.

In response, the state moved to recall Chute, who had testified before Jusino, to dispel the allegation that she had recently fabricated the allegations that she had purchased drugs from the petitioner prior to April 15, 2002.   The trial court allowed Chute to be recalled and to testify that Jusino had informed him that she had purchased drugs from the petitioner prior to April 15, 2002.⁴  As held by the Appellate Court, the trial court properly “admitted [this] evidence for the limited purpose of assessing Jusino's credibility and not as substantive evidence.”  State v. Orellana, supra, 95.

Apart from objecting to the admission of Jusino's prior consistent statements to Chute, the record reveals that Attorney Costello did not request a limiting instruction nor challenge the trial court's failure to give one directing the jury that Jusino's prior consistent statements to Chute could only be used to assess her credibility.  “It is well settled that where [a] prior consistent statement becomes admissible, it may not be used as substantive evidence of the facts contained therein, but only to rehabilitate the credibility of the witness which has been attacked.”  (Internal quotation marks omitted.)   State v. Orellana, supra, 89 Conn.App. 95.

This Court finds that the petitioner's claim that Attorney Costello rendered ineffective assistance by failing to request a limiting instruction or to object to the trial court's failure to give one fails primarily for lack of a showing of prejudice.   The petitioner argues that in the absence of a limiting instruction the facts contained in Jusino's prior consistent statements to Chute, i.e. that the petitioner had sold drugs to her on prior occasions, became substantive evidence that could have been used by the jury as criminal propensity evidence.   That is, the jury could have used it to conclude that since the petitioner sold drugs to Jusino in the past he must be guilty of the present offenses.   He points to numerous references made by Attorney Rotiroti in his closing arguments that Jusino had purchased drugs from the petitioner prior to April 15, 2002.   The petitioner is, however, failing to put this evidence in its full context.   As noted supra, the trial court allowed the state to present evidence through the testimony of Jusino that she had purchased drugs from the petitioner on earlier occasions.   The facts contained in Jusino's prior consistent statements to Chute were thus merely cumulative of the evidence already elicited from Jusino during her testimony.   Accordingly, even if Attorney Costello could have obtained a limiting instruction regarding Jusino's prior consistent statements to Chute, the jury would have still known that the petitioner had allegedly sold drugs to Jusino on other occasions.   It is also worth noting that in referring to this evidence in his closing arguments, Attorney Rotiroti did not refer specifically to the statements that Jusino made to Chute.⁵

Moreover, after closing arguments, the trial court properly instructed the jury as follows:  “In this case, the state offered evidence that the [petitioner] had sold heroin to Jessica Jusino in the past, that is, prior to April 15, 2002.   That evidence on prior acts of misconduct of the [petitioner] is not being admitted to prove the bad character of the [petitioner] or his—or his tendency to commit criminal acts.   Such evidence is being admitted solely to show or establish the existence of intent, which is a necessary element of the crime charged, and the [petitioner's] knowledge.   You may not consider such evidence as establishing a predisposition on the part of the [petitioner] to commit any of the crimes charged or to demonstrate a criminal propensity ․ You may not consider this evidence of prior misconduct for any other purpose, because it may—may predispose your mind uncritically to believe that the [petitioner] may be guilty of the offense here charged merely because of the alleged prior misconduct.   For this reason, you may consider this evidence only on the issues of intent and knowledge and for no other purpose.” ⁶  Clearly, this instruction applied to the facts contained in Jusino's prior consistent statements to Chute.   In other words, assuming the jury considered the substance of Jusino' s statements to Chute beyond their impact on her credibility, the trial court's above instructions prevented the jury from using this evidence as propensity evidence.  “[A]bsent clear evidence to the contrary, we presume that the jury followed the court's instructions.”   State v. Nance, 119 Conn.App. 392, 405, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010).   Consequently, Attorney Costello's failure to request and the trial court's failure to give a limiting instruction regarding Jusino's prior consistent statements to Chute does not undermine this Court's confidence in the result of the petitioner's criminal trial.

Based upon the above, this Court likewise finds that the petitioner has not demonstrated that Attorney Costello's failure to preserve the issue for appeal resulted in any prejudice.   While his failure to do so may have prevented review on appeal, even if the issue had been preserved and raised on appeal, the petitioner has not demonstrated that there is a reasonable probability that he would have prevailed on appeal.  “[I]t is the better practice for the trial court to instruct the jury whenever evidence is admitted for a limited purpose even when not requested to do so ․” (Internal quotation marks omitted.)   State v. Strong, 122 Conn.App. 131, 148, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010).   However, in the petitioner's case, it is not likely the Appellate Court would have found that the trial court's failure to do so resulted in any harm.   As discussed supra the substance of Jusino's prior consistent statements to Chute had been introduced as evidence of the petitioner's knowledge and intent, and the trial court properly instructed the jury that it could not consider this evidence for any other purpose.   Accordingly, it is not likely that the jury considered the evidence for any improper purposes, as suggested by the petitioner.

The petitioner next claims that Attorney Costello rendered ineffective assistance by failing to investigate Jusino.   Specifically, he alleges that Attorney Costello failed to hire an investigator to look into the state's files and the police files on Jusino.

“To succeed in his attack on the adequacy of counsel's pretrial investigation, the petitioner must show both that the investigation was inadequate, not merely imperfect ․ and that, had it not been for the inadequate investigation, there is reasonable probability that the outcome would have been different.”   (Citation omitted.)  Williams v. Bronson, 21 Conn.App. 260, 267, 573 A.2d 330 (1990).  “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

At the habeas trial, Attorney Costello explained that he did not hire an investigator but that he had one of his bondsmen, Danny Baba, who knew Jusino from the streets, work as an investigator on the petitioner's case.   He admitted that he did not have Baba look into Jusino's police files.   However, he filed a motion for disclosure and examination prior to trial, requesting the criminal records of all persons who may be called as witnesses as well the disclosure of the substance of any promises made to or any plea negotiations made with any potential witnesses.⁷  He also filed a supplemental motion for disclosure and examination, specifically requesting any records on the confidential informant, Jusino.⁸  A review of the transcripts of the petitioner's criminal trial reveal that Attorney Costello zealously pursued these motions.   However, as represented by Attorney Rotiroti and Chute, there were no records or information to disclose.⁹  Attorney Rotiroti represented to the trial court that the prosecutor on Jusino's most recent cases said that no favoritism was shown to her and that the only thing that he promised Jusino was that if she testified truthfully at the petitioner's trial and upon being asked, he would inform a judge about her conduct during the petitioner's trial.¹⁰

The petitioner has not demonstrated what benefit any additional investigation would have revealed.   There is no evidence before this Court revealing what, if anything, an investigator, would have found in Jusino's files.   In fact, there is no evidence before this Court that any such files exist.  “Mere conjecture and speculation are not enough to support a showing of prejudice.”  (Internal quotation marks omitted.)  Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

Based upon the above, this claim fails, as the petitioner has not met his burden in proving either deficient performance or prejudice resulting therefrom.

Ineffective Assistance of Appellate Counsel

In addition to claiming that his trial counsel rendered ineffective assistance, the petitioner claims, in count two of his amended petition, that his appellate counsel, Attorney Streeto, rendered ineffective assistance of counsel.  “[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).

The petitioner specifically claims that Attorney Streeto rendered ineffective assistance by (1) failing to raise on appeal the claim that the court erred in failing to give a limiting instruction regarding Jusino's prior consistent statements to Chute and (2) failing to present an exceptional basis for review of this claim.

At the habeas trial, Attorney Streeto acknowledged that he did not seek review of the claim that the court failed to give a limiting instruction regarding the admission of Jusino's prior consistent statements to Chute.   He testified that he did not believe it was a viable claim and that he raised only those claims that he viewed to be the strongest.   Attorney Westcott, who testified as an expert in appellate criminal law on behalf of the petitioner at the habeas trial, opined that it would be difficult to prevail on appeal on a claim regarding the trial court's failure to give a limiting instruction.

“The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client ․ By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal.”  (Citation omitted.)  Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).  “[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.   Legal contentions, like the currency, depreciate through over-issue ․ [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ․ The effect of adding weak arguments will be to dilute the force of the stronger ones.”  (Internal quotation marks omitted.)   Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

Attorney Streeto chose those issues that he believed to be the strongest to raise on appeal.   This Court will not second guess his tactical decisions.   In any event, the petitioner has not demonstrated that had Attorney Streeto raised the issue on appeal and presented an exceptional basis for its review, he would have been successful on appeal.   Since Attorney Costello did not request a limiting instruction or challenge the trial court's failure to give one, the claim was not preserved for appellate review.   The Appellate Court generally will not review unpreserved claims.   See Practice Book § 60–5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).   It will, however, review some unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) or the plain error doctrine.   In this case, Golding review likely would not have been available.  “Although our Supreme Court clearly has recognized that some errors in jury instructions are of constitutional magnitude, it has limited Golding review to instructional errors that so adversely prejudice the defendant that he is effectively deprived of his right to a trial by jury.”  (Internal quotation marks omitted.)  State v. Cornelius, 120 Conn.App. 177, 188, 990 A.2d 927, cert. denied, 296 Conn. 910, 993 A.2d 467 (2010).   The alleged instructional error in the petitioner's case does not rise to this level.

Similarly, it is unlikely that the Appellate Court would have reviewed the claim under the plain error doctrine.  “The plain error doctrine is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party ․ In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings ․ Plain error is a doctrine that should be invoked sparingly ․ Implicit in this very demanding standard is the notion ․ that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.”  (Internal quotation marks omitted.)  State v. William L., 126 Conn.App. 472, 485–86 (2011).  “[I]t is well established in Connecticut ․ that the trial court generally is not obligated, sua sponte, to give a limiting instruction ․ The failure by the court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not specifically mandated by statute or rule of practice is not so egregious that it affects fundamental fairness or the integrity of and public confidence in the judicial proceedings.”  (Citations omitted;  internal quotation marks omitted.)  State v. Strong, supra, 122 Conn.App. 148.   The failure of a trial court to give, sua sponte, an instruction limiting a jury's consideration of consistent statement evidence does not meet the standard for plain error review.   See State v. Jeffrey, 220 Conn. 698, 715, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3041, 120 L.Ed.2d 909 (1992);  see also State v. Arthur S., 109 Conn.App. 135, 142–43, 950 A.2d 615, cert. denied, 289 Conn. 925, 958 A.2d 153 (2008) (declining to consider claim that trial court committed plain error in failing to give a limiting instruction on the purpose for which consistent statements were admitted “because it fails to meet the stringent standard required for plain error review”).   Consequently, the Appellate Court likely would not have reviewed the claim under plain error.   Accordingly, the petitioner's claims of ineffective assistance of appellate counsel fail.

Due Process Claim

Lastly, in count three of his amended petition, the petitioner claims that the prosecutor failed to disclose to trial counsel that Jusino received a favorable sentence in exchange for her favorable testimony during the petitioner's trial.

“The law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established.   The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution ․ In order to prove a Brady [v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] 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 ․ 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.”   (Citation omitted;  internal quotation marks omitted.)  Elsey v. Commissioner of Correction, 126 Conn.App. 144, 152, 10 A.3d 578 (2011).  “The Supreme Court established a framework for the application of Brady to witness plea agreements in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ․ Drawing from these cases, this court has stated:  [D]ue process is ․ offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears ․ If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception ․ Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading ․ A new trial is required if the false testimony could ․ in any reasonable likelihood have affected the judgment of the jury.”  (Citations omitted;  internal quotation marks omitted.)  State v. Ouellette, 295 Conn. 173, 185–86, 989 A.2d 1048 (2010).  “The prerequisite of any claim under the Brady, Napue and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state.”   Id., 186.

The petitioner submitted Jusino's criminal record into evidence at the habeas trial.   It reveals that prior to acting as a confidential informant for Chute, Jusino had been arrested on December 29, 2001, February 28, 2002 and April 3, 2002 and that prior to the petitioner's trial, she had been arrested on June 24, 2002.   These arrests involved charges, including, but not limited to, possession of narcotics and sale of illegal drugs.   In July 2002, the state nolled most of these charges.   In August 2002, Jusino received a three-year sentence on a charge of sale of illegal drugs and a charge of sale of a controlled substance stemming from her December 29, 2001 arrest.¹¹  The petitioner's trial occurred on December 2, 3, 4, 5 and 9, 2002.   Attorney Costello testified at the habeas trial that he had Jusino's criminal record detailing the above prior to trial.   Chute testified that he had used Jusino as a confidential informant prior to the petitioner's case and that although he knew she had cases pending at the time of the petitioner's, he did not promise her any leniency.   He admitted that he did give her some money after they seized the drugs in the petitioner's case.   Attorney Rotiroti similarly testified that he did not promise Jusino anything in exchange for her testimony at the petitioner's trial but that he did indicate to her that if she testified truthfully he would be willing to inform a judge of as much if she asked him to do so.   He indicated that he never spoke to a judge on Jusino's behalf and that he would have turned over everything he had regarding any favorable treatment that Jusino may have received for her cooperation in the petitioner's case.   He also offered his opinion that he did not believe that her three-year sentence was lenient.

A review of the transcripts of the petitioner's criminal trial demonstrate that Attorney Rotiroti informed Attorney Costello that he had no knowledge of Jusino receiving any favorable treatment for her cooperation in the petitioner's case and that he had told Jusino that he would be willing to tell a judge about her conduct in the petitioner's case if she testified truthfully and if she asked him to do so.¹²  Initially, Jusino denied that the prosecutor, Attorney Rotiroti, had said this to her.¹³  She later admitted, after speaking to him off the record, that he had in fact said as much to her.   Apparently, Attorney Costello's initial questioning had confused her.¹⁴  Jusino also acknowledged that she had received $250 from Chute after they seized the drugs in the petitioner's case.   Apart from this, Jusino denied that any promises had been made to her in exchange for her cooperation and testimony in the petitioner's case.¹⁵

The petitioner has not offered any credible evidence of an undisclosed agreement or understanding between Jusino and the state.   Attorney Rotiroti's offer to speak to a judge on Jusino's behalf, Jusino's receipt of money from Chute following the seizure of the drugs from the petitioner's car and Jusino's criminal record had all been disclosed to Attorney Costello prior to Jusino's testimony at the petitioner's criminal trial.   The petitioner appears to argue, as Attorney Costello did during the petitioner's criminal trial, that the three-year sentence that Jusino received was lenient, as she was a repeat offender with two prior felonies, and thus, that she must have received some kind of favorable treatment from the state.   Attorney Rotiroti represented that she did not receive any favorable treatment.  “[W]e will not lightly presume that the state's attorney misrepresented the true nature of the state's agreement with [the witness].”  (Internal quotation marks omitted.)  State v. Ouellette, supra, 295 Conn. 189.   There is simply no evidence that Jusino received any favorable treatment for her involvement in the petitioner's case.   The petitioner's assertion that there must have been a “closed back door deal” is nothing more than speculative.   Accordingly, the petitioner's claim fails.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. The petitioner also claimed that his trial counsel rendered ineffective assistance by failing to “present an exceptional basis for the review of the claim” regarding the limiting instruction.   He expressly abandoned this claim in his post-trial brief..  FN1. The petitioner also claimed that his trial counsel rendered ineffective assistance by failing to “present an exceptional basis for the review of the claim” regarding the limiting instruction.   He expressly abandoned this claim in his post-trial brief.

FN2. Exhibit [Exh.] 1, pp. 165–76..  FN2. Exhibit [Exh.] 1, pp. 165–76.

FN3. Petitioner's Exh. 1, pp. 178–82..  FN3. Petitioner's Exh. 1, pp. 178–82.

FN4. Petitioner's Exh. 1, pp. 298–301..  FN4. Petitioner's Exh. 1, pp. 298–301.

FN5. Petitioner's Exh. 2, pp. 73, 85–101..  FN5. Petitioner's Exh. 2, pp. 73, 85–101.

FN6. Petitioner's Exh. 2, pp. 131–32..  FN6. Petitioner's Exh. 2, pp. 131–32.

FN7. Respondent's Exh. B..  FN7. Respondent's Exh. B.

FN8. Respondent's Exh. C..  FN8. Respondent's Exh. C.

FN9. Petitioner's Exh. 1, pp. 232–46..  FN9. Petitioner's Exh. 1, pp. 232–46.

FN10. Petitioner's Exh. 1, pp. 188, 237–38..  FN10. Petitioner's Exh. 1, pp. 188, 237–38.

FN11. Petitioner's Exh. 5..  FN11. Petitioner's Exh. 5.

FN12. Petitioner's Exh. 1, pp. 187–96, 232–38..  FN12. Petitioner's Exh. 1, pp. 187–96, 232–38.

FN13. Petitioner's Exh. 1, pp. 198–203..  FN13. Petitioner's Exh. 1, pp. 198–203.

FN14. Petitioner's Exh. 1, pp. 259–60, 290..  FN14. Petitioner's Exh. 1, pp. 259–60, 290.

FN15. Petitioner's Exh. 1, pp. 184–85, 289–90..  FN15. Petitioner's Exh. 1, pp. 184–85, 289–90.

Santos, Thelma A., J.