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LUCAS BETANCOURT v. COMMISSIONER
OF CORRECTION
(AC 32696)
Gruendel, Alvord and Bear, Js.
Submitted on briefs November 18, 2011âofficially released January 3, 2012
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, T.
Santos, J.)
Joseph Visone, special public defender, filed a brief
for the appellant (petitioner).
Maureen Platt, stateâs attorney, Harry Weller, senior
assistant stateâs attorney, and Eva Lenczewski, supervisory assistant stateâs attorney, filed a brief for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Lucas Betancourt,
appeals from the judgment of the habeas court dismissing the third count of his revised second amended petition for a writ of habeas corpus. His sole claim is that
the court improperly dismissed that count without an
evidentiary hearing. We affirm the judgment of the
habeas court.
The facts underlying this habeas appeal are set forth
in State v. Betancourt, 106 Conn. App. 627, 942 A.2d
557, cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008).
ââOn January 29, 2005, the [petitioner] drove his two
nephews, Ricco Torres and Felipe Buitrago, his friend,
Michael Meteiver, and his own six year old daughter
to a McDonaldâs restaurant in Waterbury in a green
Ford Escort. While at McDonaldâs, the [petitioner] and
Meteiver had a discussion about stealing guns from
the home of Meteiverâs father-in-law, Mario Fusco, the
victim. Meteiver was aware that the victimâs son had a
gun collection and that it had been kept at the victimâs
home. The [petitioner] then drove his nephews, Meteiver and his daughter to the victimâs home.
ââAfter arriving at the victimâs home, the [petitioner]
ordered everyone except his daughter out of the car.
The [petitioner] directed Buitrago to watch from the
front door and to enter the house last. The men then
knocked on the victimâs door, and when the victim
answered, the men pushed themselves into the house,
knocking the victim to the floor and breaking his
glasses. After entering, the [petitioner] and Torres
bound the victimâs hands and feet with duct tape and
covered his head with a pillowcase. The [petitioner]
then asked the victim where he kept his guns and
searched through the house looking for them even
though the victim explained that he no longer kept his
sonâs guns in his house. While searching, they stole $150
as well as the victimâs bank card and a handgun. The
[petitioner] and Meteiver demanded of the victim the
personal identification number for his bank card. After
receiving it, the two men went to a Webster Bank automatic teller machine and tried unsuccessfully to withdraw funds from the victimâs account. They then
returned to the victimâs home. After arriving, the [petitioner], Meteiver, Buitrago and Torres returned to the
car where the [petitionerâs] daughter was waiting, and
the [petitioner] drove to his apartment in Naugatuck
where he left his nephews and his daughter. The [petitioner] then left the apartment with Meteiver. When he
returned, he gave Buitrago the gun that either he or
Meteiver had stolen from the victimâs home and told
Buitrago to put the gun in a drawer under the bed
of the [petitionerâs] daughter. The [petitioner] left the
apartment again.
ââIn the meantime, the victim had called the police.
An interview with the victim led the police to believe
that Meteiver might be involved in the break-in because
he was the only person who knew the victim had kept
his sonâs gun collection in his home. The police found
Meteiver and arrested him on an unrelated charge. During a search of Meteiverâs person, the police found the
keys to the victimâs car and house. Meteiver admitted
that he had taken part in the break-in at the victimâs
house and directed the police to the [petitionerâs] apartment to find the other individuals involved. The police
arrived at the [petitionerâs] apartment with a search
warrant, where they found and arrested Buitrago and
Torres. Buitrago told the police that the gun they were
looking for was in a drawer under the bed of the [petitionerâs] daughter. The police found the gun, which was
the gun taken from the victimâs home, as well as some
money and mail addressed to the [petitioner]. A little
while later, the [petitioner] arrived at his apartment and
was arrested.
ââThe following day, the police found a green Ford
Escort in the driveway next to the [petitionerâs] apartment. The police obtained a search warrant for the car
and found a roll of duct tape inside. An analysis of the
duct tape revealed that the torn end of the duct tape
roll matched the torn end found on the victimâs socks.ââ
Id., 629â31. A jury trial followed, at the conclusion of
which the petitioner was found guilty of kidnapping in
the first degree in violation of General Statutes § 53a92 (a) (2) (B), conspiracy to commit kidnapping in the
first degree in violation of General Statutes §§ 53a-48
and 53a-92 (a) (2) (B), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (2), conspiracy to commit burglary in the first degree in violation
of §§ 53a-48 and 53a-101 (a) (2), robbery in the second
degree in violation of General Statutes § 53a-135 (a)
(1), and conspiracy to commit robbery in the second
degree in violation of §§ 53a-48 and 53a-135 (a) (1).
Id., 629.
In his direct appeal of that judgment of conviction,
the petitioner alleged evidential insufficiency and prosecutorial impropriety. With respect to the latter claim,
the petitioner argued ââthat the prosecutor improperly
appealed to the emotions of the jury by arguing facts
that were not in evidence regarding the [petitionerâs]
relationship with his daughter. In addition, the [petitioner] argue[d] that the prosecutor improperly bolstered Buitragoâs credibility when she argued facts that
were not in evidence regarding Buitragoâs concern for
the [petitionerâs] daughter and for the victim.ââ Id., 639.
This court rejected the petitionerâs claims, concluding
that ââ[d]uring trial, the state presented evidence that
the [petitioner] took his six year old daughter with him
and left her alone in the car when he committed the
crimes. There was further testimony that the handgun
that was taken from the victimâs home was found in a
drawer under the bed of the [petitionerâs] daughter.
Because the prosecutor may properly ask the jury to
draw reasonable inferences from the facts presented
. . . it was not improper for the prosecutor to ask the
jury to draw a reasonable inference that the [petitionerâs] actions demonstrated a lack of concern for his
daughterâs welfare. Similarly, there was evidence that
when the police knocked on the door of the [petitionerâs] apartment, Buitrago ran to where his cousin was
sleeping because he thought she might be frightened.
Furthermore, there was evidence that the victim told
Buitrago that he had a broken hip and, in response,
Buitrago placed a pillow under the victimâs hip, while
he lay on the floor. Again, the prosecutor properly asked
the jury to draw reasonable inferences from the facts
that Buitrago demonstrated concern for his cousin and
concern for the victim. Because the prosecutor was
arguing facts that were in evidence and was calling on
the jury to draw reasonable inferences from those facts,
there was no prosecutorial impropriety.ââ (Citation omitted.) Id., 640.
The petitioner thereafter filed a petition for a writ of
habeas corpus. His revised second amended petition
contained five counts. The first four counts alleged ineffective assistance of trial counsel; the fifth count alleged
that, pursuant to General Statutes § 52-270 (a), he was
entitled to a new trial on the ground of newly discovered
evidence. Prior to the habeas trial, the respondent, the
commissioner of correction, filed a motion to dismiss
counts three, four and five of the petition, which the
court granted after argument thereon. After a trial on
the remaining counts, the court denied the petition for a
writ of habeas corpus. The court granted the subsequent
petition for certification to appeal from that judgment,
and this appeal followed.
On appeal, the petitioner contends that the court
improperly dismissed the third count of his petition
without conducting an evidentiary hearing. We
disagree.
In the third count of his petition, the petitioner claims
that his trial counsel was ineffective for not filing a
motion in limine to keep the jury from hearing evidence
regarding his daughterâs presence when the crimes were
planned and perpetrated. That count concludes that if
ââthe completely irrelevant testimony of the whereabouts of the petitionerâs minor child [had been precluded] the juryâs verdict would have been different.ââ
Because the petitioner cannot establish the requisite
prejudice resulting from that alleged deficiency, the
court properly dismissed that count.
The petitioner alleges that the jury was prejudiced
by references during closing argument to evidence that
his daughter was present at the time he planned the
crimes, that she remained in the vehicle while the
crimes were perpetrated and that he and his conspirators hid a handgun under her bed. His contention neces-
sarily fails because this court already has rejected the
petitionerâs claim that those references improperly
inflamed the passions of the jury. See State v. Betancourt, supra, 106 Conn. App. 639â40. Furthermore, during argument on the respondentâs motion to dismiss,
the court specifically asked the petitioner if he had any
evidence to support his claim of prejudice regarding
the third count of his petition. The petitioner conceded
that he did not, stating: ââI canât argue prejudice. . . .
[W]e have no evidence, we have no testimony.ââ
As a general matter, ââabsent an explicit exception, an
evidentiary hearing is always required before a habeas
petition may be dismissed.ââ Mercer v. Commissioner
of Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994).
One such exception is contained in Practice Book § 2329 (5), which provides that the court may at any time
dismiss a habeas petition if it determines that, among
other reasons, ââany . . . legally sufficient ground for
dismissal of the petition exists.ââ See also Fuller v. Commissioner of Correction, 75 Conn. App. 814, 818, 817
A.2d 1274, cert. denied, 263 Conn. 926, 823 A.2d 1217
(2003). ââA habeas corpus action, as a variant of civil
actions, is subject to the ordinary rules of civil procedure, unless superseded by the more specific rules pertaining to habeas actions.ââ Taylor v. Commissioner of
Correction, 125 Conn. App. 624, 630, 11 A.3d 160 (2010)
(Beach, J., concurring and dissenting), cert. denied, 300
Conn. 908, 12 A.3d 1005 (2011). Because the third count
of the petition alleged ineffective assistance of counsel,
the petitionerâs claim required him to demonstrate prejudice resulting from his counselâs failure to file the
motion in limine. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In light of the petitionerâs concession before the habeas
court that he could neither argue such prejudice nor
offer any evidence thereon, the court properly granted
the respondentâs motion to dismiss the third count of
the petition pursuant to Practice Book § 23-29 (5).
The judgment is affirmed.
