171 Conn. App. 670
Conn. App. Ct.2017Background
- In Aug. 2009 Ampero was charged with kidnapping (1st & 2nd degree), strangulation (2nd) and interfering with an officer; a jury convicted him of kidnapping in the second degree and interfering with an officer; other convictions were acquitted and direct appeal affirmed.
- Ampero filed a second amended habeas petition alleging: ineffective assistance of trial counsel (failure to request limiting instruction on prior misconduct, failure to use a 911 tape, failure to call witnesses), actual innocence, and use of allegedly perjured testimony by the victim and her mother.
- Habeas trial (Dec. 2014) produced testimony from Ampero and several witnesses; the habeas court granted only three days’ presentence credit and denied the remaining relief; Ampero appealed the denial of the substantive habeas claims.
- The habeas court found trial counsel’s conduct was within reasonable strategic choices, petitioner failed to prove counsel’s performance prejudiced the outcome, and many habeas witnesses lacked credibility or could have been discovered pretrial.
- The court also found the habeas evidence did not qualify as newly discovered nor did it establish actual innocence by clear and convincing evidence; it rejected a due process claim based on alleged perjury for lack of proof that trial testimony was intentionally false or material to the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance — failure to request limiting instruction on prior misconduct | Counsel erred by not asking for limiting instruction after pervasive prior-misconduct testimony, which unfairly prejudiced jury | Counsel made reasonable strategic choices; even if instruction lacked, state’s other evidence was strong so no prejudice | No ineffective assistance; petitioner failed Strickland prejudice prong because the state’s case was strong and other evidence supported verdict |
| Ineffective assistance — failure to use 911 tape and to call witnesses (phone records witnesses) | Counsel failed to present exculpatory 911 recording and witnesses who would impeach victim’s relationship testimony | Counsel impeached mother’s testimony without tape; petitioner did not provide counsel witness names pretrial; trial strategy and investigatory choices reasonable | No ineffective assistance; petitioner didn’t show counsel’s performance objectively unreasonable or resulting prejudice |
| Actual innocence (freestanding) | New witness testimony would show victim lived with petitioner and so petitioner was actually innocent of kidnapping | Witnesses were known or discoverable pretrial, lacked credibility, and none witnessed the charged events; burden for actual innocence not met | Denied: evidence not newly discovered and did not prove actual innocence by clear and convincing evidence |
| Due process — conviction tainted by perjured testimony | Victim and mother committed perjury (e.g., about relationship and 911 call), and their false testimony was material to verdict | Discrepancies are not proof of intentional perjury; no evidence state knew testimony was false; even if mother discredited, victim’s testimony and other evidence supported conviction | Denied: habeas court’s credibility findings supported and petitioner failed to prove intentional, material perjury affecting verdict |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (performance and prejudice standard for ineffective assistance of counsel)
- Horn v. Commissioner of Correction, 321 Conn. 767 (standard of review for habeas ineffective assistance claims)
- Harrington v. Richter, 562 U.S. 86 (reasonable competence, deference to counsel; perfect representation not required)
- State v. Huckabee, 41 Conn.App. 565 (limiting instruction required when prior misconduct evidence is introduced under certain circumstances)
- State v. Ryan, 182 Conn. 335 (limiting instructions mitigate prejudice from prior misconduct evidence)
- Gould v. Commissioner of Correction, 301 Conn. 544 (actual innocence / perjured-testimony doctrines and evidentiary standards)
- Corbett v. Commissioner of Correction, 133 Conn.App. 310 (clear-and-convincing standard for actual innocence)
- Vazquez v. Commissioner of Correction, 128 Conn.App. 425 (newly discovered evidence standard for actual innocence)
- Schlup v. Delo, 513 U.S. 298 (gateway actual-innocence standard — not applied to freestanding claim)
- Walker v. Commissioner of Correction, 103 Conn.App. 485 (deference to habeas court factfindings and credibility determinations)