Santiago v. Commissioner of Correction

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Santiago v. Commissioner of Correction VICTOR SANTIAGO v. COMMISSIONER OF CORRECTION (AC 48221) Clark, Seeley and Westbrook, Js.* Syllabus The petitioner, who had previously been convicted of murder, appealed fol- lowing the denial of his petition for certification to appeal from the habeas court’s judgment denying his habeas petition. He claimed, inter alia, that the court improperly concluded that his trial counsel, M, did not render ineffective assistance. Held: The habeas court did not abuse its discretion in denying the petition for certification to appeal from the denial of the petitioner’s petition for a writ of habeas corpus, as the petitioner failed to meet his burden of demonstrat- ing that the substantive claims of error raised were debatable among jurists of reason, that a court could have resolved the issues in a different manner, or that the questions raised were adequate to deserve encouragement to proceed further. The habeas court did not abuse its discretion in denying the petition for cer- tification to appeal with respect to the petitioner’s claim that M had provided constitutionally ineffective assistance by failing to investigate and to present evidence at trial regarding a potential third-party culpability defense, as, at the habeas trial, the petitioner failed to call the three individuals who previously had given sworn statements to the police suggesting that a third party was responsible for the killing of the victim or to present any evidence supporting his claim that there was a reasonably probability that the result of his criminal proceedings would have been different had M investigated further or called any of those individuals to testify, and, accordingly, the petitioner did not meet his burden of demonstrating that he was prejudiced by M’s actions or inactions. The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner’s claim that the state had failed to disclose certain material and exculpatory evidence in violation of Brady v. Maryland (373 U.S. 83), as the petitioner could not demonstrate as a matter of law that the testimony the state failed to disclose was con- stitutionally material, and, thus, there was not a reasonable probability of a different result had the undisclosed evidence been presented to the jury. Argued March 23—officially released October 13, 2026 * The listing of judges reflects their seniority status on this court as of the date of oral argument.  Santiago v. Commissioner of Correction Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Streeto, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed. Chad L. Edgar, assigned counsel, for the appellant (petitioner). Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Marc G. Ramia, senior assistant state’s attorney, for the appellee (respondent). Opinion WESTBROOK, J. The petitioner, Victor Santiago, appeals, following the denial of his petition for certifica- tion to appeal, from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly rejected his claims that (a) his criminal trial counsel provided ineffective assistance by failing to investigate and to present evidence of possible third- party culpability and (b) his right to due process under the fourteenth amendment to the United States consti- tution was violated because the state failed to disclose certain exculpatory evidence in accordance with Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We conclude that the petitioner has failed to present any issue on appeal that is debatable among jurists of reason, amenable to a different resolution or deserves encouragement to proceed further and, thus, that the habeas court did not abuse its discretion in deny- ing the petitioner’s petition for certification to appeal. Accordingly, we dismiss the appeal. This court previously set forth the relevant facts and procedural history pertaining to the petitioner’s arrest  Santiago v. Commissioner of Correction and conviction. See State v. Santiago, 187 Conn. App. 350, 202 A.3d 405, cert. denied, 331 Conn. 902, 201 A.3d 403 (2019). “In the early morning hours of April 11, 1998, Wilfred Morales was shot and killed near his home on Middle Street in Waterbury when he was returning there from a bar he owned on Baldwin Street. Morales’ murder remained unsolved for twelve years, until the [petitioner’s] estranged wife, Damaris Algarin-Santiago (Algarin), provided the police with a written statement implicating the [petitioner] and his brothers, Thomas Bonilla and Noel Bermudez, in the crime. “Algarin was the state’s chief witness in its prosecution of the [petitioner]. She and the [petitioner] had been in a relationship from 1993 until 2008, had married in 2004 so that she would not be able to testify against him con- cerning Morales’ murder, and had four children together. During Algarin’s relationship with the [petitioner], he was extremely abusive toward her and, as a result of this abuse, she had come to fear him. “On April 10, 1998, Bonilla was released from prison. The [petitioner], Bonilla, and Bermudez went out that night to celebrate Bonilla’s release, while Algarin stayed home and later went to sleep. At approximately 3 a.m. on April 11, 1998, Algarin was awakened by the [petitioner] and told to go downstairs. Upon entering the downstairs living room, she saw the [petitioner] and Bonilla sorting cash and checks on the coffee table. She also saw a blue leather bank bag. Bermudez was in the kitchen disas- sembling guns, and Bonilla threatened to kill her if she said anything about what she was seeing or hearing. Bermudez then told her that he had shot Morales because he thought Morales had a gun and because Morales had previously shot the [petitioner]. “The [petitioner] and his brothers proceeded to destroy the evidence. They wiped the guns with baby oil as they broke them down and placed them into bags. They also burned the checks in the kitchen sink and burned the bank bag and their clothes in a container in the back of the house. Bonilla and Bermudez then went to a car wash  Santiago v. Commissioner of Correction to clean any gun residue from the vehicle they had used that night and, after they returned from the car wash, the [petitioner] took Algarin to dispose of the guns which were placed in three separate bags. While they were disposing of the guns, Algarin asked the [petitioner] about the murder. He told her that he had been stalk- ing Morales and planning to rob him because he knew that Morales always carried cash on him at the end of the night, that Bermudez and Bonilla had waited in the bushes for Morales while he waited in the car, and that Bermudez had shot Morales. “When they returned to the house, the [petitioner] and his brothers formulated an alibi. This alibi was that they were all together at their mother’s house celebrating Bonilla’s release from prison and sharing a Good Friday meal. Algarin stuck to this story for the next twelve years, despite repeated questioning by the Waterbury police. In 2009, however, Algarin began dating Luis Maldonado, whom she told about Morales’ murder. In April, 2010, when Maldonado had some legal trouble of his own, he told the police what Algarin had told him about Morales’ murder. When confronted by the police, Algarin finally admitted that the [petitioner] and his brothers had killed Morales, and she provided the police with a written statement detailing everything she knew about the murder. “The state thereafter charged the [petitioner] with murder, in violation of § 53a-54a (a), and felony mur- der, in violation of General Statutes § 53a-54c. The jury found the [petitioner] guilty of murder and not guilty of felony murder, and the court sentenced [him] to sixty years of incarceration.”1 Id., 352–54. The petitioner 1 As noted by the respondent, the Commissioner of Correction, in his appellate brief, Bermudez currently is serving a fifty-one year prison sentence for manslaughter and assault unrelated to the death of Morales; see State v. Bermudez, 95 Conn. App. 577, 580–81 and n.1, 897 A.2d 661 (2006); and Bonilla is currently serving a sixty year prison sentence for murder as an accessory and felony murder with respect to his role in Morales’ death. See State v. Bonilla, 317 Conn. 758, 761–62, 120 A.3d 481 (2015).  Santiago v. Commissioner of Correction appealed from the judgment of conviction, which this court affirmed.2 Id., 351–52. The petitioner commenced the underlying habeas action in 2017. The operative second amended peti- tion was filed on December 19, 2023, and contained five counts. Count one alleged various instances of ineffec- tive assistance by the petitioner’s criminal trial counsel, Attorney Michael Moscowitz, including that Moscowitz had failed to adequately investigate and to pursue a third- party culpability defense.3 Count two alleged ineffective assistance of the petitioner’s appellate counsel, Attorney Katherine Essington. Counts three through five asserted that the petitioner’s right to due process and a fair trial were violated because the state failed to disclose certain material and exculpatory evidence. Specifically, count three alleged that the state had failed to timely disclose an internal affairs investigation and report that con- tained references to Officer Marshall Robinson, whom the state had called as an expert witness at the petitioner’s criminal trial.4 Count four alleged that the state had failed to timely disclose evidence that Detective George Tirado, who was one of the lead detectives in the Morales murder investigation, previously had been arrested and convicted on federal charges of participating in a scheme 2 We note that, in light of improper comments that the prosecutor had made during closing argument to the jury, this court reversed an earlier judgment of conviction obtained by the state against the peti- tioner on these same facts and remanded the case for a new trial. See State v. Santiago, 143 Conn. App. 26, 28, 66 A.3d 520 (2013) (invoking inherent supervisory authority over administration of justice because prosecutor engaged in deliberate pattern of similar improper conduct in numerous unrelated cases and nothing short of reversal of conviction was likely to deter future prosecutorial impropriety). 3 Following the close of evidence at the habeas trial, the petitioner withdrew some of his allegations of ineffective assistance of counsel. The only allegation of ineffective assistance pursued by the petitioner in the present appeal relates to Moscowitz’ alleged failure to investigate and to pursue a third-party culpability defense. 4 Robinson was not the subject of the internal affairs investigation. The petitioner later withdrew count three following the close of evidence at the habeas trial, and, accordingly, it is not necessary to elaborate further regarding this claim.  Santiago v. Commissioner of Correction to direct illegal campaign contributions to a candidate for the United States House of Representatives. Count five alleged in relevant part that the state was aware of, but failed to disclose, testimony given during a sup- pression hearing in an unrelated criminal matter by a witness, Dontay Early, who claimed that Tirado and another detective had tried to coerce Early into providing a statement implicating the petitioner in the shooting of Morales. The respondent, the Commissioner of Cor- rection, filed a return leaving the petitioner to his proof. The habeas court, Streeto, J., conducted a two day trial on September 4 and 5, 2024. The court heard testimony from Early, Essington, and Moscowitz. On September 30, 2024, the court issued a memorandum of decision concluding that the petitioner had failed to sustain his burden of proving any of his claims of ineffective assis- tance by Moscowitz or Essington, or any claimed due process/Brady violation. Accordingly, the court denied the petition. With respect to the claims now before us on appeal, the court reasoned as follows. The court concluded that the petitioner had failed to demonstrate either deficient performance or prejudice with respect to his assertion that Moscowitz had provided ineffective assistance by failing to investigate and to present evidence of possible third-party culpability. The court credited Moscowitz’ testimony that he had not pursued a third-party culpa- bility defense because his investigation had shown that the only other people involved in the crime were the peti- tioner’s brothers. Moscowitz also testified that he was familiar with the legal standard for the admissibility of third-party culpability evidence and did not believe it was a viable defense in the present case. Instead, Moscowitz elected to focus on discrediting the state’s primary wit- ness, Algarin, by exposing motive, bias, and credibility issues. The court concluded that Moscowitz’ choice of defense strategy was a reasonable tactical decision under the circumstances. With respect to the three individuals who had given statements to the police identifying a third  Santiago v. Commissioner of Correction party, Larry Hall, as Morales’ murderer, Moscowitz tes- tified that all three were incarcerated inmates who may have agreed to implicate Hall only for their own benefit and likely would have retracted or changed that narra- tive if called to testify. The habeas court concluded that Moscowitz “justifiably and reasonably did not put much stock into their stories.” In short, the court rejected the petitioner’s claim that Moscowitz’ choice not to pursue a third-party culpability claim centered on Hall amounted to an unreasonable trial strategy and, thus, deficient performance. Moreover, the habeas court concluded that the peti- tioner also failed to demonstrate how he was prejudiced because the trial judge had been “very skeptical and dis- missive of Moscowitz’ arguments regarding third-party culpability” and the petitioner had failed to show that the court would have allowed Moscowitz to introduce evidence of Hall as a third-party culprit, particularly in light of the “rather tough legal standard for the admis- sibility of such evidence.” The habeas court stated that “[t]he absence of any evidence that the court would have permitted third-party culpability evidence is fatal to the petitioner’s ability to prove prejudice on this issue.” The habeas court also found that the petitioner had failed to prove his claim that the state committed a Brady violation by failing to disclose statements made by Early in an unrelated action that Tirado had attempted to coerce Early into signing a statement implicating the petitioner in Morales’ shooting. The court noted that Early made clear during his habeas trial testimony that he had made the undisclosed statements during a sup- pression hearing at his own 2012 criminal trial. The court relied on Practice Book § 40-13 (a), which governs the dis- closure obligations of the state and provides in relevant part that the state has an obligation to disclose to the petitioner the names and addresses of all witnesses that it intends to call, and on Practice Book § 40-13A, which provides that the state also must disclose to the petitioner any statements of those witnesses that are “within the  Santiago v. Commissioner of Correction possession of the prosecuting authority and his or her agents . . . .” The court reasoned that, “[b]ecause the state did not call or intend to call [Early] as a witness” at the criminal trial, “it had no obligation to disclose his prior testimony,” which the court believed would not have been admissible in the absence of his participation as a witness. The court also concluded that transcriptions of a person’s testimony are not truly Brady material because they are not in the state’s possession and otherwise are readily available to the defense. The court stated: “If . . . the petitioner thought that Early’s prior testimony from an unrelated proceeding, which was found not credible by the trial court, would have been useful to his defense, he was welcome to order a transcript of that testimony and call Early as a witness.” The court also stated that the state had no obligation to perform the petitioner’s investigation for him, including by obtaining documents outside its direct control that the petitioner could have obtained independently. The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed. I As a threshold matter, the petitioner claims that the habeas court improperly denied his petition for certifica- tion to appeal from the denial of his petition for a writ of habeas corpus. We disagree. “Our standard of review is well established. Faced with the habeas court’s denial of certification to appeal, a peti- tioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . “A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [a] court could resolve the issues [in a different manner] . . . or . . . the questions are ade- quate to deserve encouragement to proceed further. . . .  Santiago v. Commissioner of Correction In determining whether the habeas court abused its discretion in denying the petitioner’s request for certi- fication, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. . . . In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . for determining the propriety of the habeas court’s denial of the petition for certifi- cation.” (Citations omitted; internal quotation marks omitted.) Wilson v. Commissioner of Correction, 240 Conn. App. 118, 123–24, 362 A.3d 884 (2026); see also Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994) (adopting as state law criteria identified by United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as appropriate standard for determining whether habeas court abused its discretion in denying certifica- tion to appeal). For the reasons set forth in parts II and III of this opinion, we conclude, on the basis of our review of the record and applicable legal principles, that the petitioner has failed to meet his burden on appeal of demonstrating that the substantive claims of error raised are debat- able among jurists of reason, that a court could resolve the issues in a different manner, or that the questions raised are adequate to deserve encouragement to proceed further. Accordingly, we also conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. II The petitioner first claims that the habeas court improperly rejected his claim that Moskowitz provided constitutionally ineffective assistance by failing to investigate and to present evidence at trial regarding a potential third-party culpability defense. Specifically, the petitioner alleged in the operative amended petition that Moskowitz had failed to adequately investigate,  Santiago v. Commissioner of Correction prepare, and present the testimony of Johnny Nieves, Danny Garcia, and Jose Rivera, each of whom had given sworn statements to the police suggesting that someone other than the petitioner or his brothers was responsible for Morales’ murder. We conclude that the petitioner has failed to meet his burden on appeal with respect to this claim. The following additional facts are relevant to our consideration of the petitioner’s claim. Prior to the petitioner’s retrial; see footnote 2 of this opinion; Mos- cowitz received court filings and transcripts from the petitioner’s first trial.5 Among the materials that he had received were statements given to the police by Nieves, Garcia, and Rivera.6 Moscowitz did not send an inves- tigator to speak with the three individuals or otherwise investigate the credibility of their statements. At the habeas trial, Moscowitz testified that, other than the petitioner’s two brothers, he did not believe that third- party culpability was at issue in the petitioner’s case, and he could not recall offering any third-party culpability evidence at the trial. Moskowitz acknowledged receiving discovery materials prior to trial that included police interviews but had no independent recollection of hav- ing possessed any statements given by Nieves, Garcia, or Rivera to the police. A review of the statements did not refresh Moskowitz’ recollection. Moskowitz did not know whether Nieves, Rivera, and Garcia were incarcer- ated at the time, and he did not subpoena them to testify at the petitioner’s criminal trial. Moskowitz also could not recall the name Larry Hall or whether the police had spoken to Hall regarding the Morales murder. We next set forth our standard of review and well estab- lished legal principles. “A criminal defendant’s right to 5 Moscowitz did not represent the petitioner in his first criminal trial. 6 At the habeas trial, the court admitted into evidence a letter that indicated that the statements by Nieves, Garcia, and Rivera to the police were disclosed to Moskowitz on September 12, 2014. The statements themselves were also admitted as full exhibits, not for their truth but to show that they existed and how Moscowitz did or did not use them in the course of his representation of the petitioner.  Santiago v. Commissioner of Correction the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitu- tion and by article first, § 8, of the Connecticut constitu- tion. . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two- pronged test articulated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may [reject] a petitioner’s claim if he fails to meet either prong. . . . “On appeal, [a]lthough the underlying historical facts found by the habeas court may not be disturbed unless they [are] clearly erroneous, whether those facts consti- tuted a violation of the petitioner’s rights [to the effec- tive assistance of counsel] under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of [the] case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Jordan v. Commissioner of Correction, 197 Conn. App. 822, 829–31, 234 A.3d 78 (2020), aff’d, 341 Conn. 279, 267 A.3d 120 (2021). It is not necessary in the present case for us to decide whether Moskowitz’ failure to investigate or to pursue a third-party culpability defense on the basis of the police statements by Nieves, Garcia, or Rivera amounted to deficient performance because, assuming without decid- ing that it was, on the existing record, the petitioner has  Santiago v. Commissioner of Correction not met his additional burden of demonstrating that he was prejudiced by Moskowitz’ actions or inactions. The petitioner did not call Nieves, Garcia, or Rivera to testify at the habeas trial regarding their prior state- ments or the involvement of Hall or another party in the killing of Morales. The petitioner provided no other evidentiary basis for determining the dispositive issue; namely, whether there was a reasonable probability that, if Moskowitz had investigated further and called Nieves, Garcia, or Rivera to testify, that would have changed the result of the criminal proceedings.7 The record is silent as to whether any of the three were available to testify at the criminal trial or would have testified if called. Moreover, we are left to speculate about what they would have said if they had testified, including whether their testimony would have been consistent with their prior statements to the police or whether they would have recanted. We frequently and consistently have held that, if a claim of ineffective assistance of counsel is premised on counsel’s failure to investigate or call a witness at the petitioner’s criminal trial, the failure to call that wit- ness to testify at the habeas trial will often prove fatal to the claim because the petitioner bears the burden of establishing prejudice, which usually cannot be properly assessed without the benefit of the witness’ testimony. 7 A transcript of testimony that Rivera gave at a habeas trial for the petitioner’s brother, Bonilla, who had raised a similar ineffective assis- tance claim against his criminal trial counsel, was entered into evidence over the objection of the respondent. Rivera had testified at Bonilla’s habeas trial that Hall, whom he knew through their drug dealing busi- ness, had told Rivera that he had murdered Morales because he needed to make some money. According to Rivera, Hall purportedly gave no other details about Morales’ murder other than that he had killed him. The petitioner suggests that, because the habeas court did not mention this evidence in rejecting the petitioner’s claim, the court must have neglected to take it into account. Even with this transcript in evidence, however, it remains that there is nothing in the record indicating that Rivera would have provided the same testimony if he had been called by the petitioner at the petitioner’s habeas trial. Moreover, without Rivera’s testimony at the habeas trial, the habeas court lacked any basis for assessing the credibility of Rivera as a witness or what effect his tes- timony might have had on the outcome of the petitioner’s criminal trial.  Santiago v. Commissioner of Correction See, e.g., Benitez v. Commissioner of Correction, 197 Conn. App. 344, 351, 231 A.3d 1285 (“[i]t is axiomatic that a habeas petitioner who claims prejudice based on counsel’s alleged failure to present helpful evidence from a particular witness, must call that witness to testify before the habeas court or otherwise prove what the wit- ness would or could have stated had he been questioned at trial”), cert. denied, 335 Conn. 924, 233 A.3d 1091 (2020); see also St. John v. Commissioner of Correction, 144 Conn. App. 724, 730, 73 A.3d 844 (habeas court properly concluded that petitioner had failed to satisfy prejudice prong of Strickland test because petitioner failed to present expert witness at habeas trial), cert. denied, 310 Conn. 928, 78 A.3d 146 (2013); Lambert v. Commissioner of Correction, 100 Conn. App. 325, 327–28, 918 A.2d 281 (prejudice was not established because petitioner failed to call purportedly important expert and alibi witnesses at habeas trial or to offer other evidence as to what they would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn. App. 555, 557, 764 A.2d 1291 (2001) (petitioner could not establish that trial counsel was ineffective for failing to investigate certain witnesses because witnesses did not testify at habeas trial and no other evidence was introduced regarding how their testimony might have supported his claims). On the basis of the record before us, we cannot conclude that testimony by Nieves, Garcia, or Rivera would have had any meaningful effect on the verdict at the peti- tioner’s criminal trial. As a result, the petitioner failed to sustain his burden of showing that there was a “rea- sonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 466 U.S. 694. Because the petitioner has not demonstrated that it is debatable among jurists of reason that the outcome of his trial would have been different in the absence of trial counsel’s failure to call one or more of the witnesses in support of a third-party culpability defense, that the issue is amenable to a different resolution, or that it  Santiago v. Commissioner of Correction deserves encouragement to proceed further, the habeas court did not abuse its discretion in denying the petition for certification to appeal as to this claim. III The petitioner next claims that the habeas court improperly rejected his freestanding due process claim in which he asserted that the state improperly had failed to disclose certain material and exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. 87.8 Again, the petitioner has failed to meet his threshold burden on appeal with respect to this claim. The following facts and procedural history are relevant to our discussion of the petitioner’s Brady violation claim. As previously stated, the petitioner called Early as a witness during the underlying habeas trial. Early testified that, during a police investigation into Early’s role in an unrelated murder, Tirado and another detec- tive had subjected him to physical abuse and duress and sought to coerce him into giving a statement implicat- ing the petitioner and his brothers in Morales’ murder as well as a confession regarding his own crimes. Early further testified that he previously had conveyed this information in testimony that he had given at a sup- pression hearing during his own criminal prosecution and that the prosecutor in his case was the same one who represented the state at the petitioner’s second criminal trial. The state never disclosed Early’s testimony at the suppression hearing or its content to the petitioner or his defense counsel prior to the petitioner’s criminal trial.9 Early did not testify at the petitioner’s criminal trial. The petitioner claimed before the habeas court, and repeats on appeal, that the state had an obligation to 8 “In habeas corpus proceedings, courts often describe constitutional claims that are not tethered to a petitioner’s sixth amendment right to counsel as freestanding.” (Internal quotation marks omitted.) Medina v. Commissioner of Correction, 239 Conn. App. 666, 675 n.10, 360 A.3d 1229 (2026). 9 It is not clear from the record before us how the petitioner first learned about Early’s testimony.  Santiago v. Commissioner of Correction inform him of Early’s testimony at the suppression hear- ing because it would have supported his theory that the police always intended to frame him for Morales’ murder, and Early’s testimony would have helped to demonstrate that the police were willing to coerce wit- nesses to do so, including potentially Algarin, who was the state’s principal witness against him. The petitioner’s counsel argued that Early’s testimony was exculpatory evidence under Brady because it could have been used to demonstrate police bias and to undermine the cred- ibility of Algarin’s account of the petitioner’s involve- ment in Morales’ murder. The respondent’s counsel countered that Early’s testimony regarding the police was wholly unsubstantiated and was found not credible by the court conducting the suppression hearing and it was not entirely clear from the record “what items or materials were in existence that should have been turned over.” For the reasons set forth earlier in this opinion, the habeas court rejected the petitioner’s Brady claim, determining that the state had no obligation to disclose Early’s prior testimony to the petitioner. “In Brady, the United States Supreme Court held that [t]he defendant has a right to the disclosure of exculpa- tory evidence under the due process [clause] of . . . [the fourteenth amendment to] the United States constitution . . . . In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. . . . It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Citation omitted; internal quotation marks omitted.) State v. Andres C., 349 Conn. 300, 329, 315 A.3d 1014, cert. denied, N U.S. N , 145 S. Ct. 602, 220 L. Ed. 2d 236 (2024). “Whether [a petitioner has been] deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review.” (Internal  Santiago v. Commissioner of Correction quotation marks omitted.) Jones v. Commissioner of Correction, 212 Conn. App. 117, 142, 274 A.3d 237, cert. denied, 343 Conn. 933, 276 A.3d 975 (2022). “Under the last Brady prong, the evidence must have been material to the case, such that the favorable evidence could rea- sonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. . . . It is not enough for the defendant to show that the undis- closed evidence would have allowed the defense to weaken or destroy a particular prosecution witness or item of evidence to which the undisclosed evidence relates.” (Internal quotation marks omitted.) Id., 142–43.10 As recently stated by our Supreme Court, “[e]vidence is material [for Brady purposes] only when there is a rea- sonable probability of a different result if the evidence had been disclosed. . . . The mere possibility that an item of disclosed evidence might have helped the defense or might have affected the outcome of the trial, however, does not establish materiality . . . . A reasonable prob- ability of a different result is accordingly shown when the government’s evidentiary suppression undermines confi- dence in the outcome of the trial. . . . When a conviction depends entirely upon the testimony of a certain witness . . . information affecting their credibility is material in the constitutional sense . . . . However, when the state’s case is otherwise strong and the witness’ testimony, even if significant, is not dispositive, nondisclosure will not undermine confidence in the jury’s verdict.” (Citations omitted; emphasis altered; internal quotation marks 10 The state’s obligation to disclose exculpatory information or mate- rial to a criminal defendant is codified at General Statutes § 54-86c, which provides in relevant part: “(a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attor- ney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the informa- tion or material to the defendant. . . .” See also Practice Book § 40-11 et seq. (detailing items and information that prosecuting authority is required to disclose to criminal defendants).  Santiago v. Commissioner of Correction omitted.) Vega v. Commissioner of Correction, 354 Conn. 437, 456–57, 354 A.3d 151 (2026). In the present case, the habeas court’s reason for reject- ing the petitioner’s claim of a Brady violation premised on the state’s failure to disclose Early’s testimony at the suppression hearing was that Early’s testimony was not Brady material, in part because his testimony was publicly available to both the state and the petitioner.11 On appeal, the respondent asserts that he is “unable to defend” the habeas court’s determination that Early’s testimony was equally available to both sides, but argues in the alternative that the petitioner nonetheless cannot prevail on his Brady claim because he cannot demonstrate as a matter of law that Early’s testimony meets the mate- riality prong of Brady. We agree with the respondent. Having reviewed the record and the arguments of the parties, we are persuaded that there is not a reasonable probability that a disclosure of Early’s prior testimony would have changed the outcome of the petitioner’s criminal trial. First, the habeas court expressly stated 11 The petitioner aptly acknowledges in his appellate brief that the state’s Brady obligations do not require it to seek out and obtain exculpa- tory information for a criminal defendant, particularly if such informa- tion is in the public domain and, thus, is as accessible to the defendant as it is to the state. “[E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evi