Santana v. Commissioner of Corrections

Filing 28

RULING re 1 Petition for Writ of Habeas Corpus filed by Javier Santana. Signed by Judge Dominic J. Squatrito on 7/26/17.(Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAVIER SANTANA,
Petitioner,
v.
COMMISSIONER OF CORRECTION,
Respondent.

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PRISONER
Case No. 3:15cv9 (DJS)

RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Javier Santana, an inmate currently confined
at New Hampshire State Prison for Men in Concord, New Hampshire,
petitioned this Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 [Doc.#1] challenging his state criminal convictions
for felony murder, in violation of CONN. GEN. STAT. § 53a-54c;
attempt to commit robbery in the first degree, in violation of
CONN. GEN. STAT. §§ 53a-49 and 53a-134(a)(2); unlawful restraint in
the first degree, in violation of CONN. GEN. STAT. § 53a-95;
robbery in the first degree, in violation of CONN. GEN. STAT. §
53a-134(a)(2); and larceny in the third degree, in violation of
CONN. GEN. STAT. §§ 53A-119 and 53a-124(a)(2).

State v. Santana, 89

Conn. App. 553, 554(2005) [Resp’t App. A]. For the following
reasons, the Court denies the petition.

I.

Standard of Review
This Court will entertain a petition for writ of habeas
1

corpus challenging a state court conviction only if the
petitioner claims that his custody violates the Constitution or
federal laws.

See 28 U.S.C. § 2254(a).

A claim that a state

conviction was obtained in violation of state law is not
cognizable in this Court.

See Estelle v. McGuire, 502 U.S. 62,

67-68 (1991).
Section 2254(d) “imposes a highly deferential standard for
evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”

Renico v. Lett,

559 U.S. 766, 773 (2010) (citations and internal quotation marks
omitted).

This Court cannot grant a petition for a writ of

habeas corpus filed by a person in state custody with regard to
any claim that was rejected on the merits by the state court
unless the adjudication of the claim in state court either:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
“meet.”

This is a very “difficult” standard to

Metrish v. Lancaster, ___ U.S. ___, 133 S. Ct. 1781,

1786 (2013).
Clearly established federal law is found in holdings, not
dicta, of the United States Supreme Court at the time of the
state court decision.

See Howes v. Fields, 565 U.S. 499, 505
2

(2012).

“[C]ircuit precedent does not constitute ‘clearly

established Federal law, as determined by the Supreme Court.’”
Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting 28 U.S.C. §
2254(d)(1)). A decision is “contrary to” clearly established
federal law when the state court applies a rule different from
that set forth by the Supreme Court or if it decides a case
differently than the Supreme Court on essentially the same facts.
Bell v. Cone, 535 U.S. 685, 694 (2002).

A state court

unreasonably applies Supreme Court law when the court has
correctly identified the governing law, but unreasonably applies
that law to the facts of the case, or refuses to extend a legal
principle clearly established by the Supreme Court to
circumstances intended to be encompassed by the principle.
Davis v. Grant, 532 F.3d 132, 140 (2d Cir. 2008).

See

It is not

enough that the state court decision is incorrect or erroneous.
Eze v. Senkowski, 321 F.3d 110, 124-25 (2d Cir. 2003).

Rather,

the state court application of clearly established law must be
objectively unreasonable, a substantially higher standard.
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Thus, a state

prisoner must show that the challenged court ruling “was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility of
fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86,

103 (2011); see also Williams v. Taylor, 529 U.S. 362, 389 (2000)
3

(“state-court judgments must be upheld unless, after the closest
examination of the state-court judgment, a federal court is
firmly convinced that a federal constitutional right has been
violated”).
When reviewing a habeas petition, this Court presumes that
the factual determinations of the state court are correct.
U.S.C. § 2254(e)(1).

28

The petitioner has the burden of rebutting

that presumption by clear and convincing evidence.

Id.

Moreover, this Court’s “review under section 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.”

Cullen v. Pinholster, 563

U.S. 170, 181 (2011).
II.

Procedural History
A. Criminal Trial and Direct Appeal
The petitioner was tried jointly with his co-defendant, Gary

Cooke, in a fifty-six count substitute information charging them
with felony murder, robbery in the first degree, attempt to
commit robbery in the first degree, larceny in the third degree,
and unlawful restraint in the first degree.
App. at 555.

Santana, 89 Conn.

The Connecticut Appellate Court set forth the

following facts underlying his convictions:
On November 20, 2001, [Gary Cooke], along with his
fellow
perpetrators,
Javier
Santana
and
Abimeal
Quinones, entered a garage party at 68 Alice Street in
Bridgeport wearing masks and armed with guns, ordered
the guests to lie face down on the ground and
4

instructed them to remove their belongings. The
perpetrators began taking money, jewelry and other
items from the guests and placing them in a bag. The
perpetrators threatened that if anyone moved or looked
up, they would be killed. After approximately twenty
minutes, two officers from the Bridgeport police
department, Gilbert Delvalle and Leonard Alterio,
arrived at the garage, announced their presence and
opened the door to the garage. As the officers opened
the door, gunshots were fired from inside the garage.
Both Alterio and Delvalle returned fire into the garage
and backed away. During the exchange, Delvalle shot
Quinones, who fell to the ground and later died. The
victim, [Juan Moreno Castillo,] who was a guest at the
party, was also shot and killed.
Approximately twenty minutes after the gunfire began,
[Cooke] and Santana surrendered. Santana was the first
out of the garage, carrying an AK–47 type weapon.
[Cooke] followed shortly thereafter. Upon entering the
garage, the police found approximately thirty-five
people lying down and a red nylon bag containing cash,
jewelry and wallets. The bodies of the victim and
Quinones were also discovered. Ballistics evidence
showed that the AK–47 weapon Santana carried was the
only weapon fired by any of the perpetrators and that
the bullet that killed the victim was fired from an
AK–47.
State v. Cooke, 89 Conn. App. 530, 533-34 (2005) [cited in Resp’t
App. A]. The jury convicted the petitioner on all counts, and the
trial court, Owens, J., sentenced the petitioner to seventy years
of incarceration.

Santana v. Warden, No. CV054000840, 2010 WL

2817280, *1 (Conn. Super. Ct. Feb. 23, 2010) [Resp’t App. A].
On direct appeal, the petitioner claimed that the trial
court improperly instructed the jury on felony murder. Santana,
89 Conn. App. at 555.

Specifically, he claimed that the trial

court’s instruction permitted the jury to convict him even if a

5

police officer, and not a participant in the robbery, had fired
the gunshots that resulted in the victim’s death.

Id. The

Appellate Court rejected this claim and affirmed the conviction,
holding that the instructions adequately explained the legal
principles of felony murder and that the jury was required to
find that the petitioner or another participant in the robbery
killed the victim for purposes of that charge.

Cooke, 89 Conn.

App. at 540-46. Thereafter, the Connecticut Supreme Court denied
the petitioner’s petition for certification to appeal the
Appellate Court’s decision.

State v. Santana, 275 Conn. 922

(2005).
B. State Habeas Proceedings
On December 24, 2008, the petitioner filed an amended
petition for writ of habeas corpus in the Connecticut Superior
Court.

Am. Pet [Resp’t App. B].

He alleged that trial counsel,

Attorney Lawrence Hopkins, was ineffective in failing to:

(a)

adequately investigate the state’s evidence; (b) adequately
investigate the forensic/ballistic evidence; (c) meaningfully
advise the petitioner of the evidence against him; (d) advise the
petitioner about his ability to plead guilty under the Alford
doctrine1 (e) explain the state’s ability to charge multiple
crimes for one incident; (f) meaningfully explain the state’s

1

North Carolina v. Alford, 400 U.S. 25 (1970).
6

position on plea negotiations; and (g) adequately advise the
petitioner concerning his sentence review rights.

Id.; Santana,

2010 WL 2817280.
Four witnesses testified on the petitioner’s behalf at the
habeas trial:

Attorney Lawrence Hopkins, the petitioner himself,

Charles Haase, a ballistics expert, and Frank Stoll, a forensic
psychologist.

The respondent did not call any witnesses.

The

witnesses’ testimony revealed the following facts.
Attorney Hopkins started representing the petitioner in
January of 2002, approximately one month after the crime
occurred.

Habeas Trial Tr. [Resp’t App. C], at 31, 34.

Hopkins

testified that he reviewed the state’s evidence with the
petitioner, including the state’s theory and possible defense
strategies.

Id. at 19, 29-30.

Among the evidence he reviewed

with the petitioner was the ballistics evidence compiled from the
investigation, which showed that the bullet that killed the
victim was fired from the AK-47 rifle that the petitioner carried
during the commission of the crime.

Id. at 20, 93-94.

Hopkins

had no recollection of the petitioner ever requesting an
independent investigation into the state’s ballistics evidence,
nor did he believe that there was a need for one.

Id. at 11-12.

Hopkins also reviewed written statements given by Ramon Valentin,
a co-conspirator in the case.

Id. at 15-16.

In both statements,

Valentin admitted to driving the three robbery participants to
7

the crime scene and implicated the petitioner as one of the
participants.

Resp’t App. I, J.

During pre-trial, Hopkins

discussed the option of pleading guilty with the petitioner as
well as his sentence exposure for the charged crimes.
Trial Tr. at 20-21.

Habeas

However, the state did not offer any plea

agreements nor was the petitioner interested in entering any
agreements.2

Id. at 23, 26.

According to Hopkins, the

petitioner was adamant in pleading not guilty and electing a jury
trial.

Id. at 23.

With respect to the petitioner’s sentence

review right, Hopkins testified that the right to sentence review
is ordinarily explained to defendants at sentencing.

Id. at 25.

The petitioner acknowledged that Hopkins had explained to him
the state’s evidence and the nature of the charges, including the
ballistics evidence.

Habeas Trial Tr. at 39-40, 47-50.

However,

he testified that he was never presented with Valentin’s written
statements and that he had repeatedly requested Hopkins to hire
an investigator and conduct an independent investigation into the
ballistics evidence. Id. at

40, 60.

Although he was provided

with all the ballistics evidence compiled from the state’s

2

Hopkins testified that he had discussed with the state’s
attorney the possibility of a thirty-five year plea offer, but
the case “[n]ever got to the point where [the offer] was worthy
of discussion because [the petitioner] never indicated [that] he
would accept any kind of offer.” Habeas Trial Tr. at 24. By
contrast, the petitioner testified that he would have accepted a
thirty-five year offer had Hopkins conducted a more thorough
investigation into the state’s evidence. Id. at 69-70.
8

investigation, the petitioner wanted an independent expert to
look at the evidence.

Id. at 64-66.

Contrary to Hopkins’

testimony, the petitioner testified that the state had extended
multiple plea offers to him, starting with a twenty-five-year
offer, and that Hopkins had strongly recommended that the
petitioner accept the offer.

Id. at 50-51, 59.

The petitioner

had communicated to Hopkins that he would be willing to accept
the state’s offer if Hopkins conducted an independent
investigation into the state’s evidence.

Id. at 68-69.

Hopkins

did not, however, explain to the petitioner the possibility of
entering an Alford plea.

Id. at 51.

The petitioner testified

that he was, in fact, willing to plead guilty and would have done
so had Hopkins better explained to him the strength of the
state’s case.

Habeas Trial Tr. at 61.

Although he was given a

number of documents at sentencing, the petitioner testified that
no one had explained to him his right to have his sentence
reviewed.

Id. at 70-71.

The petitioner’s first expert witness, Charles Haase,
specializes in ballistics investigations and is often hired as a
consultant for attorneys in criminal cases.
79.

Habeas Trial Tr. at

Haase reviewed all of the police reports, photographs, and

physical evidence compiled in the petitioner’s case, including
the ballistics evidence.

Id. at 83.

According to Haase, the .22

caliber bullet recovered from the victim’s autopsy could have
9

been fired from an AK-47, the weapon carried by the petitioner
during the commission of the crime.

Id. at 93.

It could not

have been fired from a shotgun or pistol, weapons carried by the
other participants in the crime.

Id. at 94.

The second expert witness, Frank Stoll, is a forensic
psychologist.

Habeas Trial Tr. at 97.

He was hired to evaluate

the petitioner and determine whether the petitioner had some form
of psychological impairment which would have interfered with his
decision to reject a plea offer and elect a trial.

Id. at 98-99.

Stoll evaluated the petitioner using various psychological tests
and concluded that “he had difficulty constraining the volume of
his speech,” “was extremely hard-headed . . . like a bulldog,”
and appeared isolated and withdrawn.

Id. at 102-04.

Stoll

testified that these problems were consistent with someone who
suffers from a nonverbal learning disability and/or Attention
Deficit Disorder, which would have made it difficult for the
petitioner to understand the ramifications of electing a trial
over accepting a plea offer.

Id. at 109, 122.

After hearing the evidence, the state habeas court,
Nazzarro, J., rejected the petitioner’s claims and denied the
petition.

Santana, 2010 WL 2817280.

With respect to the claim

that Hopkins failed to adequately investigate the state’s case,
the habeas court concluded that the petitioner failed to satisfy
his burden of showing prejudice by demonstrating that a more
10

thorough investigation would have revealed information that would
have changed the outcome of the case. Id. at *6 (citing Holly v.
Commissioner of Correction, 62 Conn. App. 170, 175 (2001)).

The

habeas court found that Attorney Hopkins obtained all relevant
information regarding the case and reviewed the strength of the
state’s allegations with the petitioner, including the ballistics
evidence and Ramon Valentin’s statements placing the petitioner
at the scene of the crime.

Id. at *3-5.

The petitioner did not

present any new evidence that would have come to light following
a further investigation on his behalf.

Id. at *5-6.

In terms of the ballistics evidence, the state habeas court
concluded that the petitioner failed to show what an independent
expert or investigation would have revealed in comparison to the
state’s ballistics evidence.

Id. at *4-5.

Indeed, Haase’s

conclusions regarding the bullet recovered from the victim
“nearly corroborated and confirmed” the state’s ballistics
investigation, which placed the murder weapon in the petitioner’s
hands.

Id. at *4.

Moreover, the habeas court found that Hopkins

adequately explained the felony murder charge to the petitioner,
including the principle that he could still be held liable under
the statute even if he did not fire the fatal round.

Id. at *7.

With respect to the petitioner’s claim that Hopkins failed
to meaningfully advise him of the evidence against him, the state
habeas court found no deficient performance or prejudice.
11

Specifically, it found that Hopkins reviewed the entirety of the
state’s case with the petitioner and credited the petitioner’s
testimony that Hopkins “essentially implored [the petitioner] to
plead guilty” given the strength of the state’s case.

Id. at *4.

The petitioner could not satisfy his burden of showing prejudice
with respect to this claim because it was not clear from the
evidence that the state was willing to offer the petitioner any
plea agreements, and “it was [the petitioner’s] decision to
proceed to trial.”

Id. at *3.

Although the court acknowledged

that the petitioner “wanted any plea to be conditioned according
to the dictates he wished to design,” it found no evidence that
the state was willing to assent to the petitioner’s terms or that
any agreement would have been reached.

Id.

The court made an

additional finding that, even if Hopkins failed to adequately
explain the option of pleading guilty under the Alford doctrine,
the petitioner was “steadfast in going to trial,” and there was
“no indication” that a more adequate explanation would have
changed his decision.

Id. at *8.

Finally, with respect to the claim that Hopkins failed to
adequately advise the petitioner on his right to sentence review,
the state habeas court found that claim unproven.

Id. at *8.

Relying on the criminal trial transcripts, the habeas court found
that the petitioner “was specifically advised of not only his
right to appeal but his right[] to sentence review” on the
12

record.

Id.

Moreover, the petitioner failed to show any

likelihood that the Sentence Review Division would have found his
sentence to be disproportionate or inappropriate based on the
facts proven at trial.

Id. at *9.

The petitioner appealed the state habeas court’s decision to
the Connecticut Appellate Court, which dismissed the appeal in a
per curium decision.

Santana v. Commissioner of Correction, 147

Conn. App. 902 (2013). The Connecticut Supreme Court subsequently
denied the petitioner’s petition for certification to appeal the
Appellate Court’s decision.

Santana v. Commissioner of

Correction, 319 Conn. 901 (2015)
C. Federal Petition
On January 5, 2015, the petitioner filed the instant petition
for writ of habeas corpus in this Court, pursuant to 28 U.S.C. §
2254.

As best as the Court can surmise from his petition, the

petitioner claims that the trial court improperly instructed the
jury on felony murder and that trial counsel was ineffective for
failing to:

(1) present independent forensic/ballistic evidence;

(2) provide the petitioner with two statements by Ramon Valentin;
(3) introduce evidence of a gun powder residue test; (4)
adequately communicate with the petitioner throughout the
criminal trial; (5) adequately prepare for trial and investigate
the case; and (6) adequately explain to the petitioner his right
to sentence review and his plea options.
13

On July 1, 2016, the respondent filed an answer to the
petition denying the petitioner’s claims.

With respect to the

petitioner’s instructional error claim, the respondent argues
that the Appellate Court’s decision comports with Fourteenth
Amendment due process principles and constitutes a reasonable
application of Connecticut Supreme Court and United States
Supreme Court precedent on the felony murder statute and fair
jury instructions.

With respect to the ineffective assistance of

counsel claims, the respondent argues that the state habeas court
reasonably applied the principles of Strickland v. Washington,
466 U.S. 668 (1984) and rejected those claims because the
petitioner failed to satisfy his burden of showing that he was
prejudiced by any deficient performance on the part of Attorney
Hopkins.
III.

Discussion

As shown below, all but two of the petitioner’s claims have
been fully adjudicated in state court.

The remaining claims are

meritless and will be dismissed, pursuant to 28 U.S.C. §
2254(b)(2).

The Court will address each of the petitioner’s

claims in turn.
A. Instructional Error Claim
The petitioner’s first claim, alleging instructional error
on the part of the trial court, was fully adjudicated in his
direct appeal.

Thus, in order to prevail in the present petition
14

for writ of habeas corpus, the petitioner must establish that the
Connecticut Supreme and Appellate Court decisions were either (1)
contrary to, or an unreasonable application of, United States
Supreme Court precedent; or (2) based on an unreasonable
determination of the facts of the case.

28 U.S.C. § 2254(d).

1. Relevant Legal Principles
“In a criminal trial, the State must prove every element of
the offense, and a jury instruction violates due process if it
fails to give effect to that requirement.

Nonetheless, not every

ambiguity, inconsistency, or deficiency in a jury instruction
rises to the level of a due process violation.”

Middleton v.

McNeil, 541 U.S. 433, 437 (2004) (citation omitted).

A single

challenged instruction “may not be judged in artificial
isolation, but must be viewed in the context of the overall
charge.”

Id. (internal quotation marks omitted); see also

Estelle v. McGuire, 502 U.S. 62, 72 (1991) (the fact that a jury
instruction was allegedly incorrect under state law was an
insufficient basis for federal habeas relief).
“A jury charge in a state trial is normally a matter of
state law.”

U.S. ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50

(2d Cir. 1975), overruled on other grounds, Graham v. Hoke, 946
F.2d 982 (2d Cir. 1991).

Thus, a petitioner challenging a trial

court’s jury instruction in a federal habeas proceeding bears the
heavy burden of establishing a violation of a constitutional
15

right.

See Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

In

satisfying his burden, it is not enough for the petitioner to
show that the challenged instruction is “undesirable, erroneous,
or even universally condemned.”
omitted).

Id. (internal quotation marks

Rather, he must establish that the instruction “so

infected the entire trial that the resulting conviction violates
due process.”

Id. (internal quotation marks omitted). “If the

charge as a whole is ambiguous, the question is whether there is
a reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.”

Middleton,

541 U.S. at 437 (internal quotation marks omitted).
2. Analysis
In reviewing the trial court’s instructions on felony murder
the Connecticut Appellate Court applied a standard nearly
identical to that of the United States Supreme Court:
The standard of review for an improper instruction on
an element of an offense is whether it is reasonably
possible that the jury was misled. . . . In determining
whether it was indeed reasonably possible that the jury
was misled by the trial court's instructions, the
charge to the jury is not to be critically dissected
for the purpose of discovering possible inaccuracies of
statement, but it is to be considered rather as to its
probable effect upon the jury in guiding [it] to a
correct verdict in the case. . . . The charge is to be
read as a whole and individual instructions are not to
be judged in artificial isolation from the overall
charge. . . . The test to be applied to any part of a
charge is whether the charge, considered as a whole,
presents the case to the jury so that no injustice will
result. . . . The charge must be considered from the

16

standpoint of its effect on the jury in guiding [it] to
a proper verdict.
Cooke, 89 Conn. App. at 539-40 (internal quotation marks
omitted).

In responding to the petitioner’s claim that the trial

court’s instruction on felony murder was ambiguous because it did
not preclude the jury from convicting the petitioner on the basis
of a finding that a police officer, and not one of the
perpetrators, killed the victim, the Appellate Court reviewed the
entire charge and found no reasonable likelihood that such a
result occurred.

Id. at 545-46.

The Appellate Court noted that,

on several occasions during the charge, the trial court
instructed the jury that a conviction for felony murder requires
a finding that the victim’s death was “caused by one of the
perpetrators.”

Id. at 545 (emphasis in original).

Moreover, the

Appellate Court properly found that the trial court instructed
the jury that felony murder “encompasses any killing committed by
one of the criminals.”

Id. at 546 (emphasis in original;

internal quotation marks omitted).

The Appellate Court’s

conclusions have factual support by the criminal trial
transcripts, which were admitted as full exhibits during the
state habeas trial.

See Resp’t App. CC, DD, EE, FF, GG, HH, II,

JJ.
The Connecticut Appellate Court’s conclusion, which is
primarily fact-based, constitutes a reasonable application of

17

United States Supreme Court precedent on proper instructional
review.

The Appellate Court reviewed the trial court’s charge in

its entirety and properly found no reasonable likelihood of a due
process violation.

The petitioner has not identified any United

States Supreme Court precedent, and this Court is not aware of
any, that conflicts with the Appellate Court’s decision.
Therefore, the petitioner’s instructional claim in his habeas
petition is without merit and must be rejected.
The petitioner also claims that the trial court erred by
failing to instruct the jury that a guilty verdict for felony
murder requires a finding that the victim was not a participant
in the crime.

This claim has never been raised in any state

court and is, therefore, unexhausted.

Even if it had been

exhausted, however, the petitioner would not be entitled to any
relief because the trial court did, in fact, give that
instruction.

It instructed the jury as follows:

For you to find the defendants guilty of [felony
murder], the State must prove the following elements
beyond a reasonable doubt:
One, that the defendants
acting alone or with one or more other persons
committed the crime of robbery in the first degree . .
. . Two, that the defendants or another participant in
the crime of robbery in the first degree caused the
death of another person. Three, that the defendants or
another participant caused the death while in the
course of and in furtherance of the commission of the
crime of robbery in the first degree or in flight
therefrom. . . . And, four, that the victim was not a
participant.
A participant is one who takes part or
shares in the underlying crime.

18

Criminal Trial Tr. [Resp’t App. JJ] at 18-19 (emphasis added).
The petitioner’s claim is, therefore, meritless and shall be
denied despite the petitioner’s failure to exhaust.

See 28

U.S.C. § 2254(b)(2) (petition may be denied on merits despite
failure to exhaust).
A. Ineffective Assistance of Trial Counsel
The petitioner raises several claims that his trial counsel,
Attorney Hopkins, deprived him of his Sixth Amendment right to
the effective assistance of counsel.

As best as this Court can

surmise from the petition, the petitioner claims that Attorneys
Hopkins was ineffective because he failed to:

(a) hire an expert

and conduct an independent investigation into the state’s
ballistic evidence; (b) provide the petitioner with two
statements by Ramon Valentin; (c) adequately communicate with the
petitioner on all aspects of the case; (d) prepare for trial and
investigate the case; (e) adequately advise the petitioner during
plea negotiations and explain his right to sentence review; and
(f) introduce evidence of a negative gun powder residue test
result.

This Court will address each ineffective assistance of

counsel claim in turn.
1. Relevant Legal Principles
It is well-established that the Sixth Amendment right to the
assistance of counsel is “the right to the effective assistance
of counsel.”

Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir.
19

203)(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)).

A claim that counsel was ineffective is reviewed under

the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).

To prevail, the petitioner must demonstrate, first, that

counsel’s performance “fell below an objective standard of
reasonableness” established by “prevailing professional norms.”
Additionally, the petitioner must show that this deficient
performance caused prejudice to him.

Id. at 687.

In evaluating

the performance prong, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance” and make “every effort . . . to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.”

Id. at 689.

To satisfy the prejudice prong of the Strickland test, the
petitioner must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different;” the probability must
“undermine confidence in the outcome” of the trial.

Id. at 694.

In order to prevail on an ineffective assistance of counsel
claim, the petitioner must demonstrate both deficient performance
and sufficient prejudice.

Id. at 700.

Thus, if the court finds

one prong of the standard lacking, it need not consider the
remaining prong.

See id. at 697.
20

The right to effective assistance of counsel applies to all
“critical stages” of the criminal proceeding, including plea
negotiations.

Missouri v. Frye, 566 U.S. 134, 140 (2012)

(internal quotation marks omitted).

Thus, claims of ineffective

assistance of counsel in the plea bargain context are governed by
the two-part test in Strickland.
57 (1985).

Hill v. Lockhart, 474 U.S. 52,

Trial counsel has a duty to communicate formal plea

offers from the prosecution that may be favorable to the accused.
Frye, 566 U.S. at 145.

The performance prong of Strickland

remains the same in the plea bargaining context – the petitioner
must show that counsel’s advisement or representation fell below
an objective standard of reasonableness.
566 U.S. 156, 162-63 (2012).

See Lafler v. Cooper,

To show prejudice from counsel’s

deficient advisement on a plea offer, the petitioner must
demonstrate a reasonable probability that (1) they would have
accepted the offer; and (2) that the agreement would have been
entered without the prosecution rescinding the offer or the trial
court refusing to accept it.

Frye, 566 U.S. at 147.

When pursuing a state-exhausted ineffective assistance claim
in federal court, it is not enough for the petitioner “‘to
convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland
incorrectly.’”

Eze, 321 F.3d at 124 (quoting Bell v. Cone, 535

U.S. 685, 699 (2002)).

Rather, he must show that the state
21

habeas court applied Strickland in an objectively unreasonable
manner.

Id.; see also Williams v. Taylor, 529 U.S. 362, 410

(2000) (“an unreasonable application of federal law is different
from an incorrect application of federal law”).

A state court

unreasonably applies established federal law “if the state court
identifies the correct governing legal principle from [the United
States Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the [petitioner’s] case.”

Williams,

529 U.S. at 413.
2. Analysis
Because the Appellate Court issued a per curium decision
dismissing the petitioner’s appeal from the state habeas court’s
ruling, and the Supreme Court denied certification to appeal the
Appellate Court’s decision, this Court must look to the state
habeas court’s ruling for purposes of this review.

See Ylst v.

Nunnemaker, 501 U.S. 797, 806 (1991) (a federal habeas court must
“look through . . . subsequent unexplained denials” to the last
state opinion addressing the merits of a petitioner’s claim).
a. Failure to Present Independent Forensic
Ballistics Evidence
The state habeas court rejected the petitioner’s claim that
Attorney Hopkins was ineffective in failing to hire an
independent expert to examine the state’s ballistic evidence
because the petitioner failed to satisfy his burden of prejudice

22

under Strickland.

Specifically, he failed to show how, if at

all, an independent expert’s conclusions regarding the ballistic
evidence would have undermined confidence in the jury’s verdict.
In fact, the petitioner’s own expert at the habeas trial, Charles
Haase, rendered a conclusion which “corroborated” the state’s
ballistic evidence.

Haase testified that that the .22 caliber

bullet recovered from the victim could have been fired from an
AK-47, the weapon seen carried by the petitioner during the
commission of the crime; Habeas Trial Tr. at 93; and it could not
have been fired from a shotgun or pistol, weapons carried by the
other participants in the crime.

Id. at 94.

Because the

petitioner failed to satisfy his burden of showing prejudice from
Hopkins’ decision not to conduct an independent investigation
into the ballistic evidence, the state habeas court properly
rejected this claim.
The state habeas court’s decision comports with United
States Supreme Court precedent regarding the petitioner’s burden
to show prejudice from counsel’s failure to investigate or
present certain evidence.

In order to prevail, the petitioner

must demonstrate what the additional investigation would have
revealed and how it would have altered the outcome of the
criminal trial.

See Strickland, 466 U.S. at 694 (petitioner must

show reasonable probability that, but for counsel’s
unprofessional errors, result of proceeding would have been
23

different); Wiggins v. Smith, 539 U.S. 510, 536 (2003) (finding
reasonable probability of different outcome had jury been
confronted with mitigating evidence that counsel failed to
present). The petitioner has not shown how, if at all, the state
habeas court’s decision in this case conflicts with United States
Supreme Court precedent.

Consequently, his claim of ineffective

assistance of counsel based on a failure to investigate and
present independent ballistic evidence must be rejected.
b. Failure to Provide the Petitioner with
Valentin’s Statements
The petitioner contends that Attorney Hopkins was
ineffective in failing to provide him with two written statements
by Ramon Valentin, the fourth participant in the crime who drove
the petitioner, Cooke, and Quinones to the scene.

The state

habeas court rejected this claim because the evidence showed that
Attorney Hopkins did, in fact, review the substance of these
statements with the petitioner.

Santana, 2010 WL 2817280, *4.

Hopkins’ testimony at the state habeas trial supports the habeas
court’s finding.

Habeas Trial Tr. at 15-19.

Based on the foregoing, the petitioner’s present claim that
Hopkins rendered ineffective assistance by failing to provide him
with Valentin’s statements constitutes a challenge to the state
habeas court’s factual finding.

In order for a federal court to

reject a state habeas court’s factual finding, it must conclude

24

based on a thorough review of the record that the finding “is not
fairly supported by the record.”

Marshall v. Lonberger, 459 U.S.

422, 432 (1983) (internal quotation marks omitted); see also
Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007)(federal habeas
courts are required “to presume the correctness of state courts’
factual findings unless applicants rebut this presumption with
clear and convincing evidence”).

Here, the state habeas court’s

finding that Hopkins reviewed Valentin’s statements with the
petitioner is supported by Hopkins’ testimony that he was aware
of the contents of the statements and reviewed the entire state’s
case with his client.

Habeas Trial Tr. at 15-19.

The petitioner

has not provided the state habeas court or this Court with any
evidence to show the contrary, other than his self-serving
testimony, which the state habeas court rejected. See Marshall,
459 U.S. at 434 (“Title 28 U.S.C. §2254(d) gives federal habeas
courts no license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but not by
them.”). Thus, the petitioner’s claim that Hopkins did not
provide him with those statements fails.
c. Failure to Adequately Communicate with the
Petitioner and Meaningfully Advise Him of the
State’s Evidence
In response to the petitioner’s claim that Attorney Hopkins
failed to adequately communicate with, and advise, the petitioner
of the state’s evidence, the state habeas court found no
25

deficient performance or prejudice.

Its finding that Hopkins

effectively advised his client regarding the evidence against him
is sufficiently supported by Hopkins’ testimony that he discussed
the case with the petitioner, including the state’s evidence, the
concept of joint liability, and possible defense strategies;
Habeas Trial Tr. at 19, 26-30. That finding is further supported
by the petitioner’s testimony that Hopkins implored the
petitioner to enter a plea agreement based on the strength of the
state’s case.

Id. at 59, 67.

The petitioner also testified that

Hopkins explained to him the nature and ramifications of the
felony murder charge and that the petitioner understood the
possibility of being convicted of that charge even if the jury
found that he did not fire the shot that killed the victim.

Id.

at 48-49.
Moreover, even if the petitioner could show that Hopkins’
advisement was deficient, the state habeas court properly
concluded that there was no prejudice based on Hopkins’ testimony
that the petitioner was adamant in pleading not guilty and
electing a trial.

Id. at 20-21, 23-24, 26.

Hopkins also

testified that the state never extended any plea offers to the
petitioner due to the petitioner’s unequivocal decision to
proceed to trial.

Id. at 23.

Based on this evidence, the state

habeas court properly found that the petitioner failed to show a
reasonable likelihood that he would have accepted a plea offer
26

but for Hopkins’ deficient advisement.

Its conclusion comports

with the principles of Lafler and Frye regarding ineffective
assistance of counsel claims in the plea bargain process.
Because the state habeas court reasonably concluded that a more
favorable outcome for the petitioner but for any deficient
performance was unlikely, given the petitioner’s vehement
position in pleading not guilty and the state’s unwillingness to
offer any plea agreements, this Court cannot grant the petitioner
any relief on this claim.
d. Failure to Adequately Prepare for Trial and
Investigate the Case
Similarly, the state habeas court reasonably rejected the
petitioner’s claim that Hopkins failed to adequately investigate
the state’s case and prepare for trial.

It concluded, based on

Hopkins’ testimony, that Hopkins obtained all relevant
information from the state, including police reports, witness
statements, and forensic evidence, met with the petitioner on a
number of occasions, and reviewed with him the strength of the
state’s case and possible defense strategies.
2817280, at *3.

Santana, 2010 WL

Moreover, the state habeas court reasonably

concluded that the petitioner failed to present sufficient
evidence on what any additional investigation by Hopkins would
have revealed and how it would have led to a more favorable
outcome.

The petitioner has not shown that the state habeas

27

court’s conclusion conflicts with United States Supreme Court
precedent or that it unreasonably applied the principles of
Strickland to the facts of the case.

Thus, the petitioner cannot

prevail on his claim that Hopkins failed to adequately prepare
for trial and investigate the case.
e. Failure to Meaningfully Advise the Petitioner
of his Plea Options and Right to Sentence
Review
The petitioner further claims that trial counsel failed to
adequately advise him on his plea options.

Specifically, he

contends that Hopkins failed to adequately secure a plea
agreement with the state on his behalf, explain that he could
plead guilty under the Alford doctrine, and advise him of his
right to sentence review.

With respect to the first two claims,

that Hopkins failed to meaningfully advise the petitioner during
plea negotiations and his right to plead guilty under the Alford
doctrine, the habeas court reasonably found no prejudice.

It

credited Hopkins’ testimony that the state’s attorney “was not
likely to offer any particular plea agreement.”
2817280, at *8.

Santana, 2010 WL

Hopkins testified that the state did not extend

any plea offers to the petitioner because the petitioner was
adamant in pleading not guilty and electing a trial.
Trial Tr. at 23-24, 26.

Habeas

Because the habeas court’s conclusion

with respect to these claims was based on a credibility
determination, this Court cannot afford the petitioner any relief
28

in his federal petition.

See Domosthenes v. Baal, 495 U.S. 731,

735 (1990) (a federal habeas court is required to accept the
state court’s factual findings on the issue of witness
credibility).
The state habeas court also found no prejudice with respect
to the petitioner’s claim that Hopkins failed to advise him of
his right to sentence review.

Specifically, the court found that

the clerk advised the petitioner of his right to sentence review
on the record during sentencing and that the petitioner failed to
show any likelihood that the Sentence Review Division of the
Superior Court would have modified his sentence but for any
deficiency in advisement.

Santana, 2010 WL 2817280, at *8-9.

Both findings are well-supported by the record.

The sentencing

transcript, which was admitted as a full exhibit during the state
habeas trial, shows that the petitioner was, in fact, advised of
his right to sentence review.
22.

Sentencing Tr. [Resp’t App. AA] at

Moreover, the petitioner has not presented any evidence that

he would have received a sentence modification had Hopkins
specifically advised him of his right to pursue such a
modification.

Therefore, the petitioner’s ineffective assistance

of counsel claim fails in this regard.
f. Failure to Introduce Evidence of a Gun Powder
Residue Test
The petitioner also claims that trial counsel was

29

ineffective because he failed to introduce evidence of a negative
gun powder residue examination.

The petitioner has not exhausted

this claim in state court but, nevertheless, cannot prevail
because the claim is meritless.

See 28 U.S.C. § 2254(b)(2)

(district court may deny unexhausted petition on merits). The
state habeas court rejected many of the petitioner’s ineffective
assistance of counsel claims on prejudice grounds because the
state presented overwhelming evidence of the petitioner’s guilt
for felony murder.

After reviewing the criminal trial

transcripts submitted by the respondent, this Court concludes
that any evidence of a negative gun powder test result would not
have made any difference in the outcome of the trial.

Several

witnesses identified the petitioner as one of the perpetrators of
the robbery who was carrying an AK-47 assault rifle.

The bullet

that struck the deceased victim was consistent with a projectile
that was fired from that rifle, and even the petitioner’s own
ballistics expert during the state habeas trial agreed with that
conclusion.

Moreover, even if the evidence had showed that the

petitioner did not fire a weapon during the robbery, it would not
have made any difference in the jury’s verdict on felony murder,
which only requires a finding that any one of the participants
caused the victim’s death.

This Court, therefore, rejects the

petitioner’s claim.

30

IV.

Conclusion
The Petition for Writ of Habeas Corpus is DENIED.

The Clerk

is directed to enter judgment in favor of the respondent and
close this case.
The court concludes that petitioner has not shown that he
was denied a constitutionally or federally protected right.
Thus, any appeal from this order would not be taken in good
faith and a certificate of appealability will not issue.

SO ORDERED at Hartford, Connecticut this 26th
July, 2017.

____________/s/ DJS_______________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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day of