Bowens v. Commissioner of Correction ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing 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 Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest 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 the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
TYREESE BOWENS v. COMMISSIONER
OF CORRECTION
(SC 20204)
Robinson, C. J., and McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of murder, sought a writ of habeas
corpus, claiming, inter alia, that he was actually innocent of the crime,
the eyewitness identification procedures employed in connection with
his criminal case violated his due process rights under the federal consti-
tution, his first habeas counsel provided ineffective assistance of coun-
sel, and his sentence for a crime he committed when he was a juvenile,
without any consideration of the mitigating effects of his youth, violated
the constitutional prohibition against cruel and unusual punishments.
The murder occurred as the victim and another person, P, were sitting
in the victim’s parked car at a well illuminated intersection at around
11 p.m. P saw the shooter approach the car, lean into the driver’s side
window, and shoot the victim. The next day at the police station, P
identified the petitioner’s photograph from a photographic array, and
the petitioner was arrested three days later. Two other witnesses, W
and D, testified at the petitioner’s criminal trial, corroborating P’s
description of the events, but they were unable to identify the petitioner
as the shooter. D identified the petitioner in court as the man she had
seen running on an adjacent street shortly after the shooting, entering
the driveway of a house that the petitioner admitted staying at frequently
at the time of the murder, and as a man she previously had seen in her
neighborhood. In support of the alibi defense the petitioner presented
at his criminal trial, he offered the testimony of three witnesses who
claimed that he was with them at a party at C’s home at the time of
the shooting. H, an investigator retained by the petitioner’s trial counsel,
gave trial counsel a report summarizing an interview with C in which
C indicated that the petitioner had been at the party. Trial counsel
thereafter spoke with C twice during the petitioner’s criminal trial but
did not call her as a witness. The state nevertheless called C as a rebuttal
witness, and she testified that she did not know the petitioner and had
never seen him before. The petitioner’s conviction was upheld on direct
appeal. At the petitioner’s first habeas trial, the habeas court denied his
petition, in which he alleged that his trial counsel had rendered ineffec-
tive assistance of counsel. During the petitioner’s second habeas trial, the
petitioner presented the expert testimony of K, who testified regarding
scientific research on the reliability of eyewitness identifications. K
testified that several factors surrounding P’s opportunity to observe the
shooter could have undermined the reliability of P’s identification and
that the composition of the photographic array, as well as the procedures
surrounding P’s viewing of the array, undermined the reliability of her
selection of the petitioner’s photograph. At the second habeas trial, the
petitioner also presented the testimony of three witnesses who claimed
that a third party, N, had made statements to them indicating the petition-
er’s innocence and implicating himself in the shooting, although they had
never relayed this information to the police. Following the petitioner’s
second habeas trial, the habeas court rendered judgment denying the
petition. On the granting of certification, the petitioner appealed. Held:
1. The habeas court properly denied the petitioner’s claim of actual inno-
cence, as the petitioner failed to sustain his burden of proving by clear
and convincing evidence, in view of all of the evidence adduced at his
criminal and habeas trials, that he was actually innocent of the victim’s
murder and that no reasonable fact finder would find him guilty of that
crime: K’s critique of P’s eyewitness identification did not constitute
affirmative proof of actual innocence, as P’s testimony was not the only
evidence linking the petitioner to the murder and was largely corrobo-
rated by another neutral, credible witness, W, and by D, whose testimony,
if credited, would have severely undermined the petitioner’s alibi defense
by placing him near the crime scene shortly after the shooting; moreover,
there were numerous, significant inconsistencies in the testimony of
the petitioner’s alibi witnesses, two of those alibi witnesses were not
disinterested parties and, therefore, their stories may have been viewed
with skepticism by the jury; furthermore, the habeas court’s determina-
tion not to credit the testimony of the petitioner’s third-party culpability
witnesses was not clearly erroneous, as those witnesses failed to report
N’s confessions to law enforcement, N’s reputation for veracity was
subject to challenge by virtue of the witnesses’ descriptions of N as
‘‘crazy,’’ ‘‘under the influence,’’ ‘‘paranoid,’’ and as exhibiting bipolar
behavior, and N’s confession to one of those witnesses appeared to be
inconsistent with P’s account of how the victim spent the evening of
the murder.
2. The habeas court correctly concluded that the identification procedures
employed in connection with the petitioner’s criminal case did not violate
his due process rights: this court declined to consider the petitioner’s
contention that the photographic array from which P selected the peti-
tioner’s photograph was unnecessarily suggestive, as that claim had
been adjudicated in the petitioner’s direct appeal from his criminal
conviction, and K’s testimony that certain variables, such as poor viewing
conditions and the stressful effects of suddenly confronting an armed
assailant, undermined P’s ability to recognize the perpetrator was not
compelling, as the jury reasonably could have credited P’s testimony
that she had an adequate opportunity to observe the perpetrator in view
of the fact that the crime scene had been well illuminated and the fact
that P had several opportunities to observe the petitioner at close range
before she saw that he was carrying a firearm; moreover, a review of
the record did not bear out the petitioner’s contention that he was
convicted solely on the basis of P’s identification of him as the shooter,
as the jury, considering the testimony of W and D together, reasonably
could have concluded that the petitioner was the perpetrator.
3. The habeas court properly rejected the petitioner’s claim that his habeas
counsel had provided ineffective assistance at his first habeas trial by
failing to challenge trial counsel’s decision not to impeach C, as trial
counsel’s decision did not prejudice the petitioner’s defense: the petition-
er’s failure to call C to testify at his second habeas trial made it impossible
to know how she would have explained and reconciled her inconsistent
statements to H, and, accordingly, it could not be determined how the
jury at the petitioner’s criminal trial would have weighed her statements;
moreover, in light of other evidence admitted at the petitioner’s criminal
trial, there was no reason to believe that the jury would have viewed
C’s inability to recall meeting the petitioner as overly damaging to his
alibi defense.
4. Even if the habeas court incorrectly concluded that the doctrine of res
judicata barred it from resolving the merits of the petitioner’s claim that
it was cruel and unusual punishment for the trial court to have sentenced
him to a term of imprisonment of fifty years for an offense he committed
when he was seventeen years old without considering the mitigating
effects of his youth pursuant to Miller v. Alabama (567 U.S. 460), and
its progeny, he could not prevail on that claim, as this court rejected
virtually identical claims in State v. McCleese (333 Conn. 378) and State
v. Williams-Bey (333 Conn. 468), in which it held that parole eligibility
under a recent legislative enactment (P.A. 15-84) was an adequate rem-
edy under the state constitution, just as it is under the federal constitu-
tion, and that, because parole eligibility negates rather than cures a
Miller violation, resentencing is not required.
(One justice concurring in part and dissenting in part)
Argued February 19—officially released October 22, 2019
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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed. Affirmed.
Katharine Goodbody, assistant public defender, with
whom was Alexandra Harrington, former deputy assis-
tant public defender, for the appellant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
KAHN, J. The petitioner, Tyreese Bowens, appeals1
from the judgment of the habeas court denying his
second petition for a writ of habeas corpus challenging
a 1998 murder conviction. On appeal, the petitioner
claims, among other things, that the habeas court incor-
rectly concluded that (1) he did not establish by clear
and convincing evidence that he is actually innocent of
the murder, (2) the identification procedures employed
in his criminal case did not violate his due process
rights, (3) his first habeas counsel did not provide inef-
fective assistance of counsel, and (4) his cruel and
unusual punishment claims were barred by the doctrine
of res judicata. We affirm the judgment of the habeas
court.
On direct appeal, the Appellate Court briefly summa-
rized the facts of the case as follows: ‘‘On August 18,
1996, Kevin Hood, the victim, and [T’lara] Phelmetta
were riding around New Haven in [the victim’s] car.
[Shortly after 11 p.m., they stopped in front of Mike’s]
convenience store at the well lit intersection of Colum-
bus Avenue, Arch Street and Washington Avenue. [The
victim] made some purchases at the convenience store,
and, upon his return to the car, Phelmetta noticed a
man with a hooded jacket walking toward the car from
Washington Avenue. The man came up to the front
passenger seat window where she was seated and
peered through from about three feet away. She was
able to look closely at his facial features before he
turned away and walked around the back of the car,
appearing to head away from the car. Suddenly, the
man changed course and again approached the car. As
he walked up to the driver’s side, Phelmetta saw him
withdraw a gun from underneath his shirt. The man
leaned into [the victim’s] open window and shot [him]
several times. Phelmetta jumped out of the car through
her window and fled to safety.
‘‘Thereafter, officers from the New Haven [P]olice
[D]epartment patrolling on Columbus Avenue came
upon the victim. A few minutes later, Phelmetta
returned to the scene and told a police detective that
she had witnessed the shooting and gave a description
of the shooter. The following day, on August 19, 1996,
Phelmetta went to the police station, viewed a photo-
graphic array and identified the [petitioner] as the
shooter.’’ State v. Bowens, 62 Conn. App. 148, 149–50,
773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600
(2001). The petitioner was arrested three days later on
August 22, 1996.
In 1998, the case was tried to a jury, which found
the petitioner guilty of murder, in violation of General
Statutes (Rev. to 1995) § 53a-54a (a). The trial court
rendered judgment in accordance with the verdict and
sentenced the petitioner to a term of imprisonment of
fifty years. The conviction was affirmed on direct
appeal. Id., 149.
In 2004, the petitioner filed his first petition for a writ
of habeas corpus, in which he alleged that his criminal
trial counsel, Attorney Thomas J. Ullmann, had ren-
dered ineffective assistance. Following a trial in 2005
(first habeas), the habeas court denied both the petition
and the petitioner’s petition for certification to appeal.
See Bowens v. Commissioner of Correction, 104 Conn.
App. 738, 936 A.2d 653 (2007) (dismissing appeal), cert.
denied, 286 Conn. 905, 944 A.2d 978 (2008).
In 2017, the petitioner filed a second petition for a
writ of habeas corpus, which is the subject of the pres-
ent appeal. Following a habeas trial, the court denied
the petition but granted the petitioner’s petition for
certification to appeal. See footnote 1 of this opinion.
Additional facts and procedural history will be set forth
as necessary.
I
The petitioner first contends that the habeas court
incorrectly denied his claim that he is actually innocent
of the victim’s murder. He argues that the evidence
presented at the two habeas trials, taken together with
the evidence admitted at his criminal trial, establishes,
clearly and convincingly, that he was actually innocent
of the victim’s murder. The respondent, the Commis-
sioner of Correction, counters that the habeas court
correctly concluded that (1) claims of actual innocence
are only cognizable in the habeas context when founded
on newly discovered evidence,2 (2) much of the evi-
dence presented by the petitioner at the habeas trial3
was not newly discovered, (3) the petitioner’s actual
innocence claim is barred by the doctrine of res judi-
cata, and (4) the petitioner failed to present sufficient
affirmative proof to establish by clear and convincing
evidence that he was actually innocent. We agree with
the respondent’s fourth point: even if we assume that
the petitioner’s claims were—or were not required to
be—predicated on newly discovered evidence and,
even if we assume that they were not barred by the
doctrine of res judicata, the petitioner failed to sustain
his burden of proving that he is actually innocent. For
that reason, we need not address the other arguments
presented by the respondent.
A
Additional Facts
The following additional facts, which the habeas
court found or the jury reasonably could have found;
see, e.g., Miller v. Commissioner of Correction, 242
Conn. 745, 748, 700 A.2d 1108 (1997); are relevant to the
petitioner’s actual innocence claim. Three interrelated
factual questions dominated the petitioner’s criminal
and habeas trials: (1) whether eyewitnesses accurately
identified the petitioner as the shooter; (2) whether he
presented a believable alibi defense covering the time
period when the murder occurred; and (3) whether
a different individual, namely, the petitioner’s cousin,
Tyshan Napoleon, was the actual perpetrator. Each of
these questions bears on the petitioner’s actual inno-
cence claim.
1
Eyewitness Testimony
At the time of the shooting, the victim’s car was
parked on the north side of Columbus Avenue, facing
west, and just west of the Arch Street intersection, in
front of what was known as Mike’s convenience store.
As we discussed, the state’s case against the petitioner
centered around the testimony of the victim’s date,
Phelmetta. She testified at the criminal trial that she
observed the shooter as he crossed Columbus Avenue
and walked up the street toward the passenger side of
the vehicle where she was seated. The shooter drew
her attention as he approached because, although ‘‘it
was pretty warm that day,’’ he was wearing a hooded
sweatshirt (hoodie) with the hood up. Phelmetta
watched the shooter walk approximately three feet up
the sidewalk, peer at her and the victim through the
passenger side window, circle back around the rear of
the car, step into the street, quickly approach the car
from the driver’s side, pull a pistol from under his hoo-
die, lean into the open driver’s window where the victim
was seated, and begin firing at close range into the
victim’s chest. At that point, Phelmetta jumped out of
the open car window and fled up Arch Street as she
heard additional shots fired. In all, she recalled hearing
approximately seven shots fired.
Phelmetta also testified that she was able to observe
the shooter’s face and features as he initially
approached the car from the driver’s side, as he looked
at her through the passenger side window, and as he
approached the victim’s side of the car. She described
the shooter as a young, dark complexioned black male,
approximately five feet nine inches, with squinty eyes, a
wide nose, and full lips. The day following the shooting,
Phelmetta identified the petitioner as the shooter from
a photographic array.4 She also identified the petitioner
in court as the shooter.
The state also called two additional witnesses who,
although unable to identify the petitioner as the shooter,
provided testimony that largely corroborated that of
Phelmetta. The first, Daniel Newell, was a local resident
who had just parked on the west side of Arch Street,
at, and facing, the intersection with Columbus Avenue,
when the shooting occurred. He testified that he saw
a young black male wearing a hoodie cross Columbus
Avenue from Washington Avenue and approach the vic-
tim’s parked car from behind. He then heard shots and
saw sparks coming out of the car as the young man
stood at the driver’s window. Newell then heard a young
lady scream and saw her exit the passenger side of the
car, without opening the door, and run past his car
along Arch Street. After a couple more shots were fired,
Newell saw the young man walk back across the street
toward Washington Avenue and Frank Street, where
he spoke with a young Hispanic looking male. A short
time later, as Newell drove along Frank Street from the
other direction, he saw the same young black man in
the hoodie running or preparing to run down Frank
Street, away from the crime scene. Finally, Newell testi-
fied that, although the intersection at Arch Street and
Columbus Avenue was well lit, he did not pay close
attention to the shooter’s facial features.
Next, another local resident, Hilda Diaz, testified that
she was in her apartment on Frank Street at the time
of the shooting when she heard gunfire. She looked out
of her window and saw two young men—one black,
one with a lighter complexion—running down the
street. The men separated, and she watched the black
man run up a driveway that went behind a yellow house
across the street from her.
Diaz believed that she recognized the young black
male as a man whom she previously had seen frequent-
ing the yellow house. Diaz testified that the black male
‘‘had his hair wild, standing up,’’ just like the man whom
she previously had seen on her street. She stated: ‘‘I
said to myself . . . it looks like the guy. I know him.’’
Although Diaz admitted that she did not see the man’s
face as he ran by, she repeatedly stated that she recog-
nized him from his ‘‘wild’’ hair style. In court, Diaz
identified the petitioner as the man whom she saw
running on Frank Street after the shooting and whom
she previously had seen in her neighborhood, although
she noted that his hair was styled differently at the time
of trial.5
During the second habeas trial, the petitioner pre-
sented the expert testimony of Margaret Kovera, a pro-
fessor of social psychology. Kovera testified regarding
scientific research on the reliability of eyewitness iden-
tifications. She explained that studies have found that
various factors may undermine the reliability of eyewit-
ness identifications and that those factors may be coun-
terintuitive to the average juror. Consequently, Kovera
opined, expert testimony on the factors that impact the
reliability of eyewitness identifications can sensitize
jurors to those factors and help jurors to make decisions
that reflect the types of variations in accuracy that have
been observed through research.
Kovera then testified that she had reviewed the cir-
cumstances surrounding Phelmetta’s opportunity to
observe the shooter, as well as the procedures used
to obtain her identification of the petitioner from a
photographic array and, subsequently, in court. Kovera
opined that several ‘‘estimator factors’’ could have
undermined the reliability of Phelmetta’s identification.
These included the presence of a weapon, the stress
Phelmetta was under at the time of the shooting, that
the shooter was wearing a hoodie that could have dis-
guised his hairline, that the shooting took place at night,
and that Phelmetta had a relatively short period of time
in which to observe the shooter.
Kovera also noted the presence of various ‘‘system
variables’’ that could have undermined the accuracy of
the identification. She opined that the composition of
the photograph array, as well as the procedures sur-
rounding Phelmetta’s viewing of the array, undermined
the reliability of her identification. With respect to the
array itself, Kovera observed that many of the eight
included photographs were ‘‘fillers’’ that did not look
like the petitioner or closely match Phelmetta’s descrip-
tion of the shooter. For example, the photograph of
the petitioner was one of only two photographs that
depicted individuals wearing hooded sweatshirts, one
of only two photographs that depicted individuals with
‘‘puffy’’ or ‘‘pudgy’’ eyes, and one of only three photo-
graphs that had a yellow or sepia tone that caused them
to ‘‘pop out from the other pictures.’’ She also noted
that not all of the photographs depicted individuals with
broad noses and dark complexions.
Kovera also noted that the police officers brought
Phelmetta to the police station to make the identifica-
tion, that they did not utilize a double-blind procedure,
and that there was no indication that the administering
officer ever advised her that the perpetrator might not
be depicted in the array. As a result, Kovera concluded,
Phelmetta might have surmised that the police had the
shooter in custody, that his picture was included in the
array, and that she could identify it simply by the pro-
cess of eliminating those photographs that were incon-
sistent with her recollection. Kovera also opined that
it was poor police procedure, and potentially biasing,
for the police officers to have shown Phelmetta a sec-
ond photographic array containing the petitioner’s pic-
ture just prior to her in-court identification of him at
trial.
Finally, Kovera testified regarding Diaz’ testimony
that she recognized the man she saw running on Frank
Street after the shooting as the petitioner because of
his distinctive hair style. Kovera opined that the fact
that Diaz observed the subject at night, from a distance,
and while he was running and wearing a hoodie all
could have impacted the reliability of her recognition
of the petitioner. Kovera also assumed that Diaz’ identi-
fication was a cross-racial identification, which, Kovera
opined, was ‘‘problematic in that there’s a very signifi-
cant body of literature showing that people make more
mistakes when identifying somebody of another race
than they do of their own.’’
The petitioner characterized Kovera’s testimony as
newly discovered evidence. In support of that position,
Kovera testified that, although the first scientific studies
of the reliability of eyewitness identifications were con-
ducted in the late 1970s, it was not until the late 1980s
or early 1990s that discussion began regarding whether
scholars in her field could provide expert testimony in
criminal trials. She stated that the ‘‘solidification’’ of
the role of science in identifications occurred with the
publication of a white paper by the American Psychol-
ogy Law Society in 1998 but that eyewitness identifica-
tion experts were not used in Connecticut’s trial courts
until 2012. She also highlighted some ‘‘really recent’’
research into the conditions under which the confi-
dence of an eyewitness identification correlates with
accuracy. Finally, she opined that her report would
have assisted the jury in weighing the eyewitness testi-
mony in the petitioner’s criminal case.
In support of his actual innocence claim, the peti-
tioner argued that new science, encapsulated in Kov-
era’s testimony, established that his conviction had
been obtained solely on the basis of an unreliable eye-
witness identification. In rejecting this claim, the habeas
court ruled that (1) affirmative evidence of actual inno-
cence necessary to support a habeas claim must be
newly discovered, (2) Kovera’s testimony was not newly
discovered evidence; rather, it was a change in the
rules of evidence that permitted the petitioner to proffer
testimony regarding the reliability of eyewitness identi-
fication that he could not have introduced at his 1998
trial, and (3) in any event, Kovera’s testimony, if cred-
ited, did not qualify as affirmative proof of the petition-
er’s innocence but, rather, merely weakened the state’s
case by casting doubt on the reliability of their star
witness. The petitioner challenges all three conclusions
on appeal.
2
Alibi Defense
The relevant facts regarding the petitioner’s alibi
defense are set forth in full in part III A of this opinion.
In brief, the victim was killed at approximately 11:18
p.m. on August 18, 1996. The petitioner testified that
he left his mother’s house in Hamden at approximately
10 p.m., travelled by taxicab with his friend, Celena
Jackson, to her cousin’s birthday celebration in the Fair
Haven section of New Haven, and then left Fair Haven
by taxicab after midnight, returning to Hamden with
Jackson around 1 a.m. Jackson’s testimony largely mir-
rored that of the petitioner, and two of the other three
adults who were allegedly at the celebration, her cous-
ins Turquoise Cox and Stacy Bethea, also confirmed
that the petitioner was with them on the night of the
murder. The other attendee, Jackson’s cousin, Crystal
Bethea, did not recall the petitioner being present or
ever having met him previously.
The habeas court did not discuss the petitioner’s alibi
at length. The court did note, however, that Diaz’ testi-
mony, if credited by the jury, placed the petitioner in
the vicinity of the murder just moments after it occurred
and, therefore, undercut his alibi defense.
3
Third-Party Culpability
In both of his habeas actions, the petitioner con-
tended not only that he was in Fair Haven at the time
of the murder but also that he could identify the actual
shooter: his cousin, Napoleon. The first habeas action
was filed in 2003 and tried in mid-2005, a few months
after Napoleon died in a shoot-out with the police. In
that petition, the petitioner contended that ‘‘Napoleon
was and is the person who killed [the victim] . . . .’’
At trial, however, his habeas counsel, Attorney Frank
Cannatelli, conceded that the petitioner was unable to
establish at that time that any specific third party had
committed the crime.
In his second habeas petition, the petitioner again
contended that he was actually innocent of the victim’s
murder. At his habeas trial, he produced, for the first
time, three witnesses, each of whom testified that, prior
to his death, Napoleon had confessed to the crime and
lamented that the petitioner had been wrongly con-
victed. Those witnesses were Joseph Burns, Napoleon’s
former coworker, roommate, and childhood friend;
Tychiah Harrison, Burns’ ex-wife and a cousin of both
the petitioner and Napoleon; and Amika Collins, a child-
hood friend of the petitioner and the mother of Napo-
leon’s child.
Burns testified that, at some point in 2000, he offered
a ride to Napoleon, who seemed to be angry and upset.
When Burns asked what was wrong, Napoleon replied
that he was thinking about the petitioner, who was
in prison. Napoleon stated that the petitioner ‘‘really
shouldn’t be there’’ and elaborated that, ‘‘I did that shit,
man. I did that shit. He shouldn’t . . . be there.’’ When
Burns asked Napoleon how he could allow the peti-
tioner to ‘‘go down for this,’’ Napoleon replied, ‘‘I ain’t
going back to jail.’’
Burns conceded that he never reported this conversa-
tion to the police, explaining that ‘‘[w]e don’t believe
in going to the police.’’ He also stated that he feared
Napoleon would retaliate had he gone to the authorities.
Harrison testified that, in 1996, Napoleon was living
on Frank Street in New Haven. She recalled that his
moods were often ‘‘high and low’’ and he seemed to be
angry and ‘‘under the influence.’’ She had seen him in
possession of a gun on a number of occasions, and she
knew that he was selling drugs and had weapons at
that time.
Later, on one occasion in 2001 or 2002, Napoleon
showed up unannounced at Harrison’s North Branford
home. He was crying and told Harrison and her hus-
band, Doug, ‘‘[T]his shit is killing me. I need someone
to talk to. You know Tyreese didn’t kill that dude. . . .
Tyreese couldn’t have done that. That, that wasn’t Tyre-
ese. He wasn’t about that life.’’ Napoleon then admitted:
‘‘[I]t was me.’’
Harrison also related a second conversation with
Napoleon that occurred several weeks after the first.
Napoleon had again appeared at Harrison’s home and
told her that the petitioner had been ‘‘across town with
his girl,’’ presumably at the time of the murder. She
also testified that Napoleon indicated, with respect to
some unspecified date, possibly the date of the murder,
that ‘‘that dude came over here, he came over here,’’
and ‘‘I had to run and get my piece, and I ran off the
porch after him.’’
Harrison conceded that she did not report Napoleon’s
statements to the police, despite knowing that the peti-
tioner was incarcerated, because she did not think the
police could do anything. She claimed, however, that
she told her grandmother, Irene Johnson, whom she
believed would know the appropriate people to notify,
as well as her Aunt Thelma.
Harrison’s characterizations of Napoleon, however,
were inconsistent with eyewitnesses’ descriptions of
the shooter. Harrison testified that, in 1996, Napoleon
‘‘didn’t really have too much hair’’ and that it was ’’very,
very short to his scalp and like he was losing his hair
on top. Like it was like fading. It was very, very thin.’’
She also described Napoleon as light skinned, for a
person of color. In addition, she characterized his
demeanor when making his confession as ‘‘paranoid’’
and ‘‘[under] [t]he influence or just crazy . . . [m]aybe
both . . . .’’
Finally, Collins testified that, in late 2004, Napoleon
told her that he ‘‘[g]ets away with a lot of things that
he’s done, that his cousin was locked up for something
that he did, just because his name was Ty.’’ Napoleon
reiterated, ‘‘they got the wrong Ty.’’ Collins admitted
that she never told anyone what Napoleon had said,
even though she knew that the petitioner was in prison.
She claimed that she was afraid of Napoleon and was
testifying at the habeas trial only because he was dead.
With respect to the third-party culpability testimony,
the habeas court found as follows: ‘‘Despite being
related to the petitioner by blood or marriage and having
occasionally lived in the same house where the peti-
tioner and . . . Napoleon sometimes resided, none of
the three witnesses who testified at the present habeas
trial that Napoleon implicated himself as the real
shooter came forward with this information until after
Napoleon’s tragic death some years after the petition-
er’s criminal trial. In order to credit the testimony of
[Burns], Harrison, and Collins, a fact finder would have
to believe that these three individuals, all of whom were
well aware [of] the petitioner’s plight, chose to ignore
the grievous injustice suffered by their kin for years
while he languished in prison.
‘‘As noted above, the revelations of these witnesses
about . . . Napoleon were withheld until after Napo-
leon’s unfortunate demise. The surfacing of these accu-
sations only after Napoleon could no longer be called
to account taints their testimony with the scent of fabri-
cation to benefit the petitioner. One can argue that
these witnesses delayed reporting the conversations
with . . . Napoleon, which exonerated the petitioner,
for fear of these reports leading to Napoleon’s arrest.
Napoleon was also a relative of the witnesses. However,
clear and convincing proof is more exacting than that
sufficient to establish a probability of actual innocence.
Clear and convincing evidence is substantial and
unequivocal evidence that demonstrates a very high
probability that the fact to be proven is true . . . .
‘‘It is at least equally persuasive that these witnesses
took advantage of Napoleon’s earthly departure as a
convenient occasion to cast false blame on him to res-
cue the petitioner from his fate as it is to believe that
these witnesses allowed the petitioner to sit in prison
for years for a crime of which they knew he was inno-
cent. The equivocal motivations for the witnesses’
belated revelations fail to convince the court, by clear
and convincing evidence, that the petitioner is factually
innocent of [the victim’s] murder [or] that no reasonable
fact finder would convict the petitioner of that crime
after consideration of a combination of the evidence
adduced at both the criminal trial and the habeas pro-
ceedings . . . .’’ (Citations omitted.)
B
Governing Law
Habeas corpus relief in the form of a new trial on
the basis of a claim of actual innocence requires that
the petitioner satisfy the two criteria set forth in Miller
v. Commissioner of Correction, supra, 242 Conn. 747.
Under Miller, ‘‘the petitioner [first] must establish by
clear and convincing evidence that, taking into account
all of the evidence—both the evidence adduced at the
original criminal trial and the evidence adduced at the
habeas corpus trial—he is actually innocent of the crime
of which he stands convicted. Second, the petitioner
must also establish that, after considering all of that
evidence and the inferences drawn therefrom as the
habeas court did, no reasonable fact finder would find
the petitioner guilty of the crime.’’ Id.
As to the first prong, we emphasized in Miller that
‘‘the clear and convincing standard . . . is a very
demanding standard and should be understood as such,
particularly when applied to a habeas claim of actual
innocence, where the stakes are so important for both
the petitioner and the state. . . . [That standard]
should operate as a weighty caution upon the minds of
all judges, and it forbids relief whenever the evidence is
loose, equivocal or contradictory. . . . [The standard
requires] extraordinarily high and truly persuasive dem-
onstration[s] of actual innocence.’’ (Citations omitted;
internal quotation marks omitted.) Id., 795.
Moreover, ‘‘actual innocence [must be] demonstrated
by affirmative proof that the petitioner did not commit
the crime.’’ (Emphasis added.) Gould v. Commissioner
of Correction, 301 Conn. 544, 561, 22 A.3d 1196 (2011).
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime . . . that a third party com-
mitted the crime, or that no crime actually occurred.’’
(Emphasis omitted.). Id., 563. ‘‘Clear and convincing
proof of actual innocence does not, however, require
the petitioner to establish that his or her guilt is a factual
impossibility.’’ Id., 564. In part for these reasons, we
emphasized in Miller that ‘‘truly persuasive demonstra-
tions of actual innocence after conviction in a fair trial
have been, and are likely to remain, extremely rare.’’
(Internal quotation marks omitted.) Miller v. Commis-
sioner of Correction, supra, 242 Conn. 805–806.
C
Analysis
1
With respect to Kovera’s expert testimony, we agree
with the conclusion of the habeas court that, as a matter
of law, Kovera’s critique of Phelmetta’s eyewitness iden-
tification did not constitute affirmative proof of actual
innocence. The court explained that ‘‘[a] more vigorous
attack on the witnesses’ acumen and memory when
identifying the petitioner as the perpetrator only weak-
ens the prosecution case rather than [tending] to estab-
lish that the petitioner could not have committed the
crime . . . . Simply casting doubt on the reliability of
a state’s witness, even a star witness, fails to qualify as
affirmative proof of innocence . . . .’’ (Citation omit-
ted; emphasis omitted.) In other words, the fact that an
identification is made under less than ideal conditions,
even conditions that render it highly suspect, does not
mean that the identification is necessarily inaccurate
or that no reasonable jury could credit it.6 If that were
the case, then many convictions obtained on the basis
of eyewitness testimony would have to be nullified.
The habeas court also observed that, as a factual
matter, Phelmetta’s testimony was not the only evi-
dence tending to link the petitioner to the crime. Rather,
her account of events was largely corroborated by that
of another neutral, credible witness, namely, Newell.
In addition, Diaz testified that an individual, whose hair
she recognized as that of the petitioner, ran behind
a house that the petitioner tended to frequent, mere
moments after the shooting occurred nearby, and at a
time when the petitioner claimed to have been across
town in Fair Haven. So, although Diaz could not link
the petitioner directly to the shooting, her identification,
if credited, would have severely undermined his alibi
defense.7
Indeed, the fact that the petitioner took the stand
and offered an alibi defense at his criminal trial made
Diaz’ testimony especially damaging. As Michael Shee-
han, the petitioner’s criminal defense expert, testified
at the habeas trial, presenting a weak, implausible, or
easily rebutted alibi is an especially risky defense strat-
egy. Although a defendant always enjoys the presump-
tion of innocence, ‘‘it is generally acknowledged that
an attempt to create a false alibi constitutes evidence
of the defendant’s consciousness of guilt.’’ (Internal
quotation marks omitted.) Skakel v. Commissioner of
Correction, 329 Conn. 1, 64, 188 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569
(2019).
In the present case, it was not only Diaz’ testimony
and the fact that Crystal Bethea did not recall the peti-
tioner having attended Cox’ birthday celebration that
might have led the jury to question the veracity of the
petitioner’s story. During his closing argument, the pros-
ecutor pointed to the numerous, significant inconsisten-
cies in the testimony of the petitioner’s alibi witnesses
as evidence that they had fabricated the alibi story. He
also emphasized that the petitioner himself admitted
to having briefly left Cox’ celebration, ostensibly to
‘‘walk around the projects’’; no one was able to verify
where the petitioner went during that period or how
long he was gone.8 Moreover, Sheehan, the petitioner’s
own expert, conceded that the petitioner’s two principal
alibi witnesses, Jackson and Cox, were not disinter-
ested parties, and, therefore, their stories might have
been viewed with skepticism by the jury.9
For these reasons, we conclude that there is substan-
tial evidence to support the habeas court’s determina-
tion that the petitioner failed to establish by clear and
convincing evidence that he is actually innocent of the
charged crime. See Miller v. Commissioner of Correc-
tion, supra, 242 Conn. 803 (defining standard of review).
For essentially the same reasons; see Gould v. Commis-
sioner of Correction, supra, 301 Conn. 559 n.14; we
conclude that the petitioner also failed to satisfy the
second prong of Miller, namely, to demonstrate that
no reasonable jury with knowledge of the evidence
presented at the habeas trial would have found him
guilty beyond a reasonable doubt. See Miller v. Com-
missioner of Correction, supra, 747. At the end of the
day, the jury, in order to find the petitioner guilty, must
have determined that the eyewitness testimony of Phel-
metta and Diaz, as linked and corroborated by Newell’s
testimony, was substantially more credible than that of
the petitioner and his alibi witnesses.10 It is certainly
possible that, had it been given the opportunity to filter
the testimony of the state’s witnesses through the lens
of Kovera’s critique, the jury would have weighed the
competing stories differently and come to a different
conclusion. But we are not prepared to say, on this
record, that no reasonable jury, having heard Kovera’s
testimony, could nevertheless find the petitioner guilty
beyond a reasonable doubt. Accordingly, even assum-
ing, for the sake of argument, that Kovera’s testimony
constituted new evidence, we are not persuaded that,
if credited, it would have constituted affirmative proof
of the petitioner’s actual innocence.
2
We also are not prepared to gainsay the habeas
court’s determination that the petitioner failed to prove
by clear and convincing evidence that Napoleon was the
actual perpetrator. Although the court did not expressly
state that the petitioner’s third-party culpability wit-
nesses—Burns, Harrison, and Collins—lacked credibil-
ity, the court’s determination that their testimony was
tainted ‘‘with the scent of fabrication’’ was tantamount
to such a finding. Because the habeas court is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony, we must defer to that
finding.11 See, e.g., Sanchez v. Commissioner of Correc-
tion, 314 Conn. 585, 604, 103 A.3d 954 (2014).
Moreover, even if we were to construe the habeas
court’s determination as a legal, rather than factual,
conclusion, there is ample authority for the court’s con-
clusion that a witness’ failure to report a purported
third-party confession to law enforcement calls his or
her credibility into question. See, e.g., State v. Bryant,
202 Conn. 676, 703, 523 A.2d 451 (1987) (friends or
acquaintances of defendant may be expected to convey
exculpatory information to police); Moye v. Warden,
Docket No. CV-XX-XXXXXXX, 2012 WL 3006297, *3 (Conn.
Super. June 22, 2012) (same), aff’d sub nom. Moye v.
Commissioner of Correction, 147 Conn. App. 325, 81
A.3d 1222 (2013), aff’d, 316 Conn. 779, 114 A.3d 925
(2015); State v. Sands, 123 N.H. 570, 612, 467 A.2d 202
(1983) (noting cases from other jurisdictions).
Nevertheless, the petitioner contends that the habeas
court’s findings with respect to the third-party culpabil-
ity testimony of Burns, Harrison, and Collins are clearly
erroneous because those findings rest on an inaccurate
understanding of the relationship between the wit-
nesses, Napoleon, and the petitioner. Specifically, the
habeas court opined that it was especially implausible
that those witnesses would permit the petitioner to
languish unjustly in prison when they were ‘‘related to
the petitioner by blood or marriage and . . . occasion-
ally lived in the same house [on Frank Street] where
the petitioner . . . sometimes resided . . . .’’ The
petitioner argues that only Harrison, the petitioner’s
cousin, was his kin, and that only Burns ever resided
with the petitioner on Frank Street.
This, however, ignores the fact that Burns also was
essentially family to the petitioner, having lived with
him when the two were children and having dated Har-
rison in high school and married her in 2010.12 Of the
petitioner’s cousin Napoleon, Burns testified, ‘‘that’s my
extended family. I’m actually closer to his family, than
I am to my own.’’ And of the petitioner himself, Burns
volunteered that ‘‘we were all close. We was like fingers
in the same hand.’’ For her part, Collins was a childhood
friend of the petitioner and, while she was never mar-
ried to Napoleon, did reside with and have a daughter
with him.
The record reveals a number of reasons why the
habeas court may have declined to credit the petition-
er’s witnesses. First, Burns and Harrison were married
for some unspecified period of time while the petitioner
was incarcerated, beginning in 2010. Harrison, however,
testified that she related Napoleon’s confessions only
to her grandmother and her great aunt, whereas Burns
stated that he had never shared Napoleon’s confession
with anyone else. The habeas court reasonably could
have found it to be improbable that the couple, both
of whom had known the petitioner since childhood and
both of whom had been close compatriots of Napoleon
over the years, would never once during their married
life have compared notes on the topic or remarked that
the petitioner was serving time for Napoleon’s crime.
Second, even if one takes the confession testimony
at face value, Napoleon’s reputation for veracity was
subject to challenge. The witnesses variously described
Napoleon as ‘‘crazy,’’ ‘‘under the influence,’’ ‘‘paranoid,’’
and exhibiting bipolar behavior. And Napoleon’s con-
fession to Harrison that he chased the victim off of
his porch on Frank Street, presumably just before the
murder, appears to be inconsistent with Phelmetta’s
account of how she and the victim spent the evening
in question. For these reasons, we conclude that the
habeas court’s decision not to credit the testimony of
Burns, Harrison, and Collins was not clearly erroneous
and that court’s determination that the petitioner failed
to establish his actual innocence by clear and convinc-
ing evidence was not incorrect.
II
The petitioner’s second claim also revolves around
Kovera’s expert testimony as to the questionable relia-
bility of eyewitness identifications. The petitioner con-
tends that he was convicted solely on the basis of Phel-
metta’s identification of him as the shooter and that
that identification was so unreliable as to violate his
constitutional right to due process of law.13 We are
not persuaded.
A
A due process challenge to an eyewitness identifica-
tion presents a mixed question of law and fact that we
review de novo. See, e.g., State v. Marquez, 291 Conn.
122, 137, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.
Ct. 237, 175 L. Ed. 2d 163 (2009). Although we must
defer to any factual findings of the habeas court in this
regard, we do so only after conducting a scrupulous
examination of the record to ascertain whether those
findings are supported by substantial evidence. See id.
The following well established principles guide our
resolution of this issue. The due process clause of the
fourteenth amendment has been construed to bar, in a
criminal prosecution, the admission of evidence deriv-
ing from unnecessarily suggestive identification proce-
dures. See Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct.
375, 34 L. Ed. 2d 401 (1972). In applying this protection,
‘‘each case must be considered on its own facts, and
. . . convictions based on eyewitness identification at
trial following a pretrial identification by photograph
will be set aside on that ground only if the photographic
identification procedure was so impermissibly sugges-
tive as to give rise to a very substantial likelihood of
irreparable misidentification.’’ (Internal quotation
marks omitted.) Id., 196–97. ‘‘But if the indicia of relia-
bility are strong enough to outweigh the corrupting
effect of the [police arranged] suggestive circum-
stances, the identification evidence ordinarily will be
admitted, and the jury will ultimately determine its
worth.’’ Perry v. New Hampshire, 565 U.S. 228, 232,
132 S. Ct. 716, 181 L. Ed. 2d 694 (2012).
Moreover, when police misconduct or other state
action is not implicated, and the challenge is simply to
the reliability of the identification itself, the United
States Supreme Court has made clear that the federal
constitution ‘‘protects a defendant against a conviction
based on evidence of questionable reliability, not by
prohibiting [the] introduction of the evidence, but by
affording the defendant means to persuade the jury
that the evidence should be discounted as unworthy of
credit.’’ Id., 237. As that court further explained in Perry,
‘‘the potential unreliability of a type of evidence does
not alone render its introduction at the defendant’s trial
fundamentally unfair. . . . The fallibility of eyewitness
evidence does not, without the taint of improper state
conduct, warrant a due process rule requiring a trial
court to screen such evidence for reliability before
allowing the jury to assess its creditworthiness.’’ (Cita-
tions omitted.) Id., 245.
The Supreme Court explained its reasons for
rejecting ‘‘a broadly applicable due process check on
eyewitness identifications . . . . [The] unwillingness
to enlarge the domain of due process . . . rests, in
large part, on our recognition that the jury, not the
judge, traditionally determines the reliability of evi-
dence. . . . We also take account of other safeguards
built into our adversary system that caution juries
against placing undue weight on eyewitness testimony
of questionable reliability. These protections include
the defendant’s [s]ixth [a]mendment right to confront
the eyewitness . . . the defendant’s right to the effec-
tive assistance of an attorney, who can expose the flaws
in the eyewitness’ testimony during cross-examination
and focus the jury’s attention on the fallibility of such
testimony during opening and closing arguments [and]
[e]yewitness-specific jury instructions, which . . .
likewise warn the jury to take care in appraising identifi-
cation evidence. . . . The constitutional requirement
that the government prove the defendant’s guilt beyond
a reasonable doubt also impedes convictions based on
dubious identification evidence.’’ (Citations omitted;
footnote omitted.) Id., 244–47. Accordingly, ‘‘[w]hen no
improper law enforcement activity is involved . . . it
suffices to test reliability through the rights and oppor-
tunities generally designed for that purpose, notably,
the presence of counsel at postindictment lineups, vig-
orous cross-examination, protective rules of evidence,
and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved
beyond a reasonable doubt.’’ Id., 233.
B
With these principles in mind, we turn our attention
to Kovera’s testimony suggesting that the identification
procedures used in the present case were unnecessarily
suggestive. Relying on Kovera’s testimony, the peti-
tioner appears to allege that both system variables, such
as the officers’ use of an unnecessarily suggestive pho-
tographic array, and estimator variables, such as poor
visibility, a short exposure duration, and the fear inspir-
ing presence of a firearm, fatally undermined Phelmet-
ta’s ability to identify the perpetrator.
We decline to consider the petitioner’s first con-
tention, that system variables rendered the photo-
graphic array from which Phelmetta selected him
unnecessarily suggestive, because essentially the same
claim was adjudicated in the petitioner’s direct appeal.
See, e.g., Carpenter v. Commissioner of Correction,
274 Conn. 834, 845 n.8, 878 A.2d 1088 (2005) (‘‘if an issue
was litigated on appeal, the petitioner is not entitled to
bring a habeas petition challenging the outcome of the
appeal’’ [emphasis omitted]). Specifically, the Appellate
Court considered and rejected the petitioner’s argument
that the array was unnecessarily suggestive because
only two of the eight photographs depicted individuals
wearing hoodies and because the array included pic-
tures of light skinned males who did not have the facial
features that Phelmetta had described. See State v. Bow-
ens, supra, 62 Conn. App. 158–61. The fact that Kovera
discussed certain other obvious factors, such as that
the petitioner’s photograph was one of several photo-
graphs in the array that had a yellowish hue, does not
permit him to relitigate the claim in this habeas action.
With respect to the issue of whether estimator vari-
ables, such as poor viewing conditions and the stressful
effects of suddenly confronting an armed assailant, ren-
dered Phelmetta’s identification so unreliable as to vio-
late the petitioner’s fourteenth amendment rights, the
United States Supreme Court in Perry specifically
rejected the theory that factors of this sort that cast
doubt on the trustworthiness of an eyewitness identifi-
cation constitute a due process violation: ‘‘[Many] fac-
tors bear on the likelihood of misidentification . . . for
example, the passage of time between exposure to and
identification of the defendant, whether the witness
was under stress when he [or she] first encountered
the suspect, how much time the witness had to observe
the suspect, how far the witness was from the suspect,
whether the suspect carried a weapon, and the race
of the suspect and the witness. . . . To embrace [the
petitioner’s] view would thus entail a vast enlargement
of the reach of due process as a constraint on the
admission of evidence.’’ (Citations omitted; internal
quotation marks omitted.) Perry v. New Hampshire,
supra, 565 U.S. 243–44.
We further note that Kovera’s testimony that estima-
tor variables undermined Phelmetta’s ability to recog-
nize the perpetrator was not especially compelling in
light of the evidence presented at trial. Several wit-
nesses testified that the intersection where the crime
occurred was well lit. Phelmetta testified that she had
several opportunities to observe the perpetrator at close
range, before she saw that he was carrying a firearm
and before she became aware that he posed any threat.
There also is no indication in the record that Phelmetta
is of a different race than the petitioner. Although there
were certain minor inconsistencies between Phelmet-
ta’s trial testimony, the testimony of other witnesses,
and Phelmetta’s prior statements to the police, the jury
reasonably could have credited her trial testimony that
she had an adequate opportunity to observe the perpe-
trator.
Our review of the record also does not bear out the
petitioner’s contention that Phelmetta’s identification
was the only evidence tying him to the crime. Newell’s
testimony largely corroborated that of Phelmetta. He
testified that he saw a young black male wearing a
hoodie cross Columbus Avenue, approach the victim’s
car from behind, and fire into the driver’s window as
a female passenger fled the vehicle from the passenger
side. Newell reported seeing the same individual a short
time later on Frank Street, just around the time that Diaz
saw a man fitting the same description, who appeared
to be the petitioner, running down and across Frank
Street.
It is true that Newell himself was not able to identify
the petitioner as the shooter and, also, that there was
some ambiguity as to whether Diaz actually identified
the petitioner or merely observed that the individual
whom she saw running down Frank Street immediately
after the shooting looked like the petitioner and ran
behind a house that was frequented by the petitioner.
There is no doubt, however, that the jury, considering
Newell’s and Diaz’ testimony together, reasonably could
have concluded that the petitioner was the perpetrator.
At the very least, the testimony of Diaz, a neighbor,
that a man who looked remarkably like the petitioner
ran behind a house frequented by the petitioner
moments after the shooting would have given the jury
reason to doubt the petitioner’s alibi defense that he
spent the evening at a party on the other side of town.
For all of these reasons, we conclude that the habeas
court correctly concluded that the identification proce-
dures employed in this case did not violate the petition-
er’s due process rights.
III
We next consider the petitioner’s claim that his first
habeas counsel, Cannatelli, provided ineffective assis-
tance by failing to pursue a claim against his trial coun-
sel, Ullmann, for failing to properly impeach the state’s
alibi rebuttal witness, Crystal Bethea (Crystal). We are
not persuaded.14
A
The following additional facts are relevant to this
issue. The petitioner presented an alibi defense at trial.
He took the stand and testified that, on the evening of
the shooting, he had been at his mother’s home at 56
Glemby Street in Hamden, together with his friend,
Jackson, and his parents. He and Jackson then decided
to leave to attend a birthday celebration for Jackson’s
cousin, Cox, at Crystal’s home in the Fair Haven section
of New Haven. They called for a taxicab from Metro
Taxi and, at approximately 10 p.m., more than one hour
before the shooting occurred, traveled by taxicab from
Hamden to the celebration.
The petitioner further testified that he and Jackson
remained at Cox’ residence for ‘‘a couple of hours.’’
Around midnight, the petitioner called for another taxi-
cab and requested a driver named Nina, with whom he
was acquainted. When Nina arrived, the petitioner and
Jackson traveled in her taxicab to a diner, where they
ordered take-out food. They then smoked marijuana in
the taxicab as Nina drove them back to 56 Glemby
Street in Hamden, where they arrived at approximately
1 a.m.
The petitioner further testified that, on the day of the
murder, he was never present at the intersection where
the shooting occurred and also that he was never on
he shot the victim.
The defense presented four additional witnesses in
support of the alibi. First, Jackson testified that she
and the petitioner traveled by taxicab from Hamden to
the celebration in Fair Haven at 9:30 p.m. and remained
there until approximately 1 a.m. She also recalled that
she called for a taxicab to take herself and the petitioner
home but denied that she and the petitioner previously
knew Nina or requested her as the driver. She did testify,
however, that they took the taxicab to a diner, pur-
chased food, and smoked marijuana with Nina, the
driver, before returning to Hamden. Jackson recalled
that she arrived at her home in Hamden at approxi-
mately 2 a.m.
Second, Stacy Bethea (Stacy) testified that she was
already at 4 Bailey Street in Fair Haven with her cousins,
Cox and Crystal, and their respective children, when
Jackson arrived with the petitioner. Stacy recalled that
Jackson and the petitioner later departed in a taxicab,
but she could not remember at what times they arrived
or left the residence. She also testified that she had not
known the petitioner prior to that night, never saw him
again, could not recall what he looked like, and could
not identify him in court.
Cox was the petitioner’s third alibi witness. She con-
firmed that her birthday is August 18, the same date as
the charged murder. She testified that, on the night of
the shooting, she was celebrating at Crystal’s Fair
Haven apartment. She recalled that the petitioner and
Jackson arrived there by taxicab sometime between
9:30 and 10 p.m. and stayed at the party for approxi-
mately three hours. Cox also remembered seeing Jack-
son call for a taxicab before Jackson and the petitioner
departed around 12:30 or 1 a.m.
Cox, like Jackson, testified that she had learned of
the petitioner’s arrest on August 19, the day following
the murder, notwithstanding testimony by police offi-
cers, and the petitioner’s own acknowledgement, that
he was not arrested until three days later, on August
22. Both Cox and Jackson admitted that they did not
go to the police to inform them that the petitioner had
been with them in Fair Haven at the time of the shooting.
The petitioner’s final alibi witness was Francis Ander-
son, a manager from Metro Taxi. Anderson authenti-
cated documents from his company’s computerized
database that memorialized two telephone calls that
the company had received on August 18 and 19, 1996. On
the basis of those records, he testified that the company
dispatched a taxicab to 56 Glemby Street in Hamden
at 10:03 p.m., with a stated destination of 4 Bailey Street
in Fair Haven, and that the company dispatched another
taxicab at 12:51 a.m. to 4 Bailey Street, with a stated
destination of ‘‘56 Geny Street’’ in New Haven.15
Anderson testified that the driver of the taxicab that
responded to the second call was female but that he
could not recall her name. He also conceded that the
records did not specify whether a taxicab actually went
to Glemby Street in Hamden at 10:03 p.m., who, if any-
one, it picked up at that location, or whether it ever
went to Bailey Street in New Haven. Likewise, he could
not confirm whether a taxicab actually went to 4 Bailey
Street in New Haven at 12:51 a.m., whether it picked
up anyone at that location, or whether it transported
anyone anywhere after that.16 Finally, on cross-examina-
tion, Anderson estimated that it would take only ten
minutes to travel from Bailey Street to Frank Street in
New Haven.
The petitioner did not call Crystal to testify, even
though she also allegedly had been present at her home
for Cox’ celebration at the time the murder transpired.
The state called Crystal as a rebuttal witness. She testi-
fied that she did not know the petitioner and that she
had never seen him before.
On cross-examination, Crystal indicated that she
recalled that Cox, Jackson, and Stacy were present at
her apartment on the evening of August 18, 1996, but
that she did not recall the petitioner being there. Ull-
mann was able to establish that she had been drinking
alcohol that night.
At the second habeas trial, Ullmann testified that he
began representing the petitioner in September, 1996.
He learned at their first meeting that the petitioner had
a potential alibi defense, and he filed a notice of alibi
shortly thereafter. He testified that his investigator,
Donna Harris, was able to identify, locate, and interview
three of the potential alibi witnesses: Cox, Jackson, and
Crystal. In his case file, Ullmann retained a handwritten
investigative report in which Harris memorialized a Sep-
tember, 1996 phone interview she had conducted with
Crystal. In the report, Harris recounted: ‘‘Ms. Bethea
relates the following. On August 18, 1996, she arrived
home (4 Bailey St.—New Haven) between 9:30-10 p.m.
[The petitioner, Jackson and Cox] were already there.
Everyone stayed until 12:30-1 a.m. when [the petitioner,
Jackson and Cox] left by cab. Cab was called from
her apartment.’’
Ullmann subsequently interviewed Crystal on two
occasions during the petitioner’s criminal trial. The sec-
ond interview took place at the courthouse on June 5,
1998. This was the same day that the state rested its
case and the defendant presented his alibi witnesses,
and just four days before the state called her to testify
as a rebuttal witness.
At the second habeas trial, Ullmann was questioned
as to why, when Crystal testified at trial that she had
never met the petitioner, he did not confront her with
her prior conflicting statement to Harris that the peti-
tioner had attended Cox’ celebration. Ullmann testified
that he could not recall his reasoning. The petitioner
did not call Crystal to testify at the habeas trial, and,
although Harris testified, she was unable to recall the
details of her conversation with Crystal.
The petitioner then called Sheehan, a highly experi-
enced criminal defense attorney, as a legal expert. Shee-
han remarked that Crystal’s unimpeached testimony
was ‘‘important,’’ ‘‘dramatic’’ and ‘‘powerful,’’ and he
opined that a reasonable defense attorney would have
either confronted her with her prior statement or called
Harris to testify. As to Cannatelli, Sheehan observed
that he had alleged ineffective assistance by Ullmann
on several bases, but, Sheehan opined, those claims
were weaker than a claim premised on Ullmann’s failure
to impeach Crystal with her statement to Harris. Conse-
quently, Sheehan opined that, assuming that Ullmann
had no strategic reason for failing to impeach Crystal’s
testimony, Cannatelli’s failure to claim that Ullmann
was ineffective for failing to impeach Crystal also
was unreasonable.
The habeas court found that the petitioner had failed
to prove his claim related to Ullmann’s decision not to
impeach Crystal because the petitioner had not estab-
lished either necessary element of an ineffective assis-
tance claim, namely, deficient performance or preju-
dice. See part III B of this opinion. As to deficient
performance, the habeas court stated that, in light of the
presumption that counsel acted competently, Ullmann’s
excellent reputation, and the fact that Ullmann spoke
twice with Crystal in the week before her testimony and
made a strategic decision not to call her as a witness,
the court was ‘‘hesitant to draw the inference that such
omission was the result of oversight rather than discre-
tion.’’ The court speculated that ‘‘[w]hatever informa-
tion he gleaned from her, motivated . . . Ullmann to
decline to call Crystal as a witness and may have caused
him to be cautious when cross-examining her as a rebut-
tal witness.’’
With respect to prejudice, the habeas court noted,
among other things, that (1) the petitioner did not call
Crystal to testify at the habeas proceeding, and so failed
to establish how she would have responded if con-
fronted with her statement, (2) the state’s brief direct
examination of Crystal was limited to asking whether
she previously had seen the petitioner, (3) Ullmann was
able to establish on cross-examination that Crystal had
been drinking on the night in question, and (4) Crystal’s
testimony did not figure prominently in either attorney’s
closing arguments, which focused primarily on the testi-
mony of Phelmetta and Diaz. Accordingly, the habeas
court found that the petitioner’s claim that Ullmann
provided ineffective assistance of counsel lacked merit,
and, as such, the petitioner could not prove that Canna-
telli was ineffective in failing to challenge Ullmann’s
failure to impeach Crystal during the first habeas trial.
B
The following well established principles govern our
analysis of this claim. ‘‘[T]he habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . The application of the habeas
court’s factual findings to the pertinent legal standard,
however, presents a mixed question of law and fact,
which is subject to plenary review. . . .
‘‘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 rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed
only if he [or she] satisfies both prongs, a reviewing
court can find against a petitioner on either ground.
. . . (Citation omitted; internal quotation marks omit-
ted.) Johnson v. Commissioner of Correction, 330
Conn. 520, 537–38, 198 A.3d 52 (2019).
C
With these principles in mind, we now consider
whether the habeas court correctly concluded that Ull-
mann’s decision not to impeach Crystal with her alleged
statement to Harris did not constitute deficient perfor-
mance or prejudice the petitioner’s defense. Because
we agree with the habeas court that Ullman’s failure
to question Crystal regarding that statement did not
prejudice the petitioner’s defense, we need not deter-
mine whether that court also correctly determined that
Ullman’s performance was not deficient. See id.
As we discussed, the petitioner did not call Crystal
to testify at the habeas trial. Without knowing how
Crystal would have explained and reconciled her alleg-
edly inconsistent statements to Harris, it is impossible
to know how the jury would have weighed them at the
petitioner’s criminal trial. Cf. Gallimore v. Commis-
sioner of Correction, supra, 112 Conn. App. 483; Adorno
v. Commissioner of Correction, 66 Conn. App. 179, 186,
783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428
(2001). That fact alone precludes a finding of prejudice.
It is also noteworthy in this regard that Stacy’s activi-
ties and movements on the night of the murder tracked
those of Crystal. Although Stacy testified that she did
recall the petitioner attending the celebration, she also
court. Further, the petitioner’s own testimony was not
necessarily inconsistent with Crystal’s rebuttal testi-
mony. Specifically, in testifying as to his whereabouts
and activities on the night of the murder, the petitioner
stated that he spent only a few minutes in the presence
of Crystal during Cox’ celebration. Further, he con-
ceded that, during that period, he sat on a couch off to
the side and largely remained quiet, while the four
women sat in the kitchen talking among themselves.
Accordingly, there is no reason to think that the jury
would have viewed Crystal’s inability to recall meeting
the petitioner as overly damaging to his alibi defense.
We thus conclude that, even if Ullmann’s representation
of the petitioner was deficient, the petitioner has failed
to establish that he was prejudiced thereby.
IV
Lastly, we consider the petitioner’s argument that the
habeas court incorrectly concluded that his cruel and
unusual punishment claims were barred by the doctrine
of res judicata. Because we resolved the identical under-
lying constitutional questions in two other recent cases;
see State v. McCleese, 333 Conn. 378, A.3d
(2019); State v. Williams-Bey, 333 Conn. 468, A.3d
(2019); we need not decide whether the habeas
court misapplied the doctrine of res judicata.
The following additional procedural history is rele-
vant to this issue. In March, 2016, the petitioner filed
in the Superior Court a motion to correct an illegal
sentence pursuant to Practice Book § 43-22. Relying on
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012),17 and its progeny, he argued that it
was cruel and unusual punishment for the trial court
to have sentenced him to a term of imprisonment of
fifty years for an offense that he committed at the age
of seventeen, without first considering the mitigating
impacts of his youth. The petitioner acknowledged that,
in State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016),
and State v. Boyd, 323 Conn. 816, 151 A.3d 355 (2016),
we concluded that the legislature’s enactment of No.
15-84 of the 2015 Public Acts (P.A. 15-84)18 ‘‘offers a
constitutionally adequate remedy under the eighth
amendment to those who qualify for parole under its
provisions.’’ (Internal quotation marks omitted.) State
v. Delgado, supra, 808. He argued, however, that those
cases did not resolve the issues of whether (1) the
availability of parole adequately vindicates his rights
under the constitution of Connecticut, and (2) P.A. 15-
84 established a constitutionally adequate parole pro-
cedure.
The court rejected the petitioner’s argument, con-
cluding that resentencing was not required under the
state constitution. Following what it believed to be the
mandate of Delgado and Boyd, the court dismissed the
petitioner’s motion in March, 2017, rather than denying
it. In May, 2017, the petitioner appealed from the dis-
missal of his motion. See State v. Bowens, Connecticut
Appellate Court, Docket No. AC 40727 (appeal filed
May 18, 2017). In August of that year, the Appellate
Court, sua sponte, stayed that appeal pending this
court’s disposition in Williams-Bey.
At the same time, the petitioner also raised his cruel
and unusual punishment claims in the present habeas
action, including in the operative second amended peti-
tion, which he filed in April, 2017. Although the respon-
dent had raised a defense of res judicata only with
respect to issues that the petitioner had raised on direct
appeal or in the first habeas action, the habeas court,
sua sponte, ruled that ‘‘[t]he respondent’s res judicata
defense bars this claim from being relitigated in this
habeas case’’ because the precise claim had been liti-
gated in the motion to correct an illegal sentence.
On appeal to this court, the petitioner contends that
his cruel and unusual punishment claims should not
have been denied on the basis of res judicata because
(1) his motion to correct an illegal sentence was dis-
missed rather than denied on its merits, and (2) it would
be perverse to require that, ‘‘before seeking to correct
an illegal sentence in the habeas court, a defendant
either must raise the issue on direct appeal or file a
motion pursuant to [Practice Book] § 43-22 with the trial
court’’ (emphasis added); Cobham v. Commissioner of
Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001); but
then to conclude that filing such a motion pursuant to
§ 43-22 precludes a defendant from bringing a subse-
quent habeas action.
Even if we were to assume, for the sake of argument,
that the petitioner is correct that the habeas court
should have resolved his constitutional claims on the
merits, he cannot prevail on those claims. After the
present case was argued, we released our decisions in
State v. McCleese, supra, 333 Conn. 378, and State v.
Williams-Bey, supra, 333 Conn. 468, in which we
rejected virtually identical claims. Specifically, we held
in those cases that (1) parole eligibility under P.A. 15-
84 is an adequate remedy under our state constitution
just as it is under the federal constitution, and (2)
because the opportunity for parole negates, rather than
cures, a Miller violation, resentencing is not required,
and P.A. 15-84 is constitutionally sound. Accordingly,
we need not determine whether the habeas court
improperly applied the doctrine of res judicata.
The judgment is affirmed.
In this opinion, ROBINSON, C. J., and McDONALD,
D’AURIA and MULLINS, Js., concurred.
1
The petitioner, on the granting of certification, appealed from the judg-
ment of the habeas court to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
2
On the respondent’s motion, we permitted the parties to submit supple-
mental briefs to address the issue of whether newly discovered evidence
is required to sustain a claim of actual innocence in the habeas context.
3
Unless otherwise noted, all references to the habeas trial are to the
petitioner’s second habeas trial, which is the subject of the present appeal.
4
The trial court denied the petitioner’s motion to suppress Phelmetta’s
identification, ruling that the identification procedure was not unnecessarily
suggestive, and the Appellate Court upheld that ruling on direct appeal.
State v. Bowens, supra, 62 Conn. App. 157–61.
5
The petitioner’s mother, Alice Buie, and his cousin, Tychiah Harrison,
both confirmed that, in the summer of 1996, the petitioner lived at or regularly
visited and stayed at a house at 24-26 Frank Street that Buie’s family owned.
The petitioner himself admitted to having stayed at that location two to
three times per week in August, 1996.
6
See, e.g., Cook v. Ohio, Docket No. 2:15-cv-02669, 2016 WL 374461, *10
(S.D. Ohio February 1, 2016), report and recommendation adopted and
affirmed, 2016 WL 770998 (S.D. Ohio February 29, 2016); Hale v. McDonald,
Docket No. ED CV 09-00570-DMG (VBK), 2010 WL 4630268, *16 (C.D. Cal.
July 30, 2010), report and recommendation accepted and adopted, 2010 WL
4628056 (C.D. Cal. November 8, 2010), aff’d sub nom. Hale v. Cate, 530 Fed.
Appx. 636 (9th Cir. 2013); Coleman v. Thompson, 798 F. Supp. 1209, 1216–17
(W.D. Va.), aff’d, 966 F.2d 1441 (4th Cir.), cert. denied, 504 U.S. 992, 112 S.
Ct. 2983, 119 L. Ed. 2d 600 (1992); see also Carriger v. Stewart, 132 F.3d
463, 477 (9th Cir. 1997) (‘‘[a]lthough the postconviction evidence [that the
petitioner] presents casts a vast shadow of doubt over the reliability of his
conviction, nearly all of it serves only to undercut the evidence presented
at trial, not affirmatively to prove [his] innocence’’), cert. denied, 523 U.S.
1133, 118 S. Ct. 1827, 140 L. Ed. 2d 963 (1998); G. Weiss, ‘‘Prosecutorial
Accountability After Connick v. Thompson,’’ 60 Drake L. Rev. 199, 242 (2011)
(‘‘evidence that challenges the credibility of a witness for the prosecution
is of a different category than true Brady [v. Maryland, 373 U.S. 83, 87, 83
S. Ct. 194, 10 L. Ed. 2d 215 (1963)] material, which tends to show the actual
innocence of the criminal defendant’’ [footnote omitted]).
7
The petitioner contends that Diaz never actually identified him as the
individual whom she saw on Frank Street after the shooting but, rather,
merely noted a resemblance between the men. The jury, however, reasonably
could have interpreted Diaz’ testimony that, ‘‘I said to myself . . . it looks
like the guy. I know him,’’ together with her identification of the petitioner
at trial, as a positive identification.
8
The prosecutor also highlighted other aspects of the petitioner’s testi-
mony that lacked credibility, such as his bizarre statements that, even though
he was living alone several days each week at the house on Frank Street
and already had a child of his own, he was bound by a self-imposed ‘‘curfew’’
and so rarely went out in the evenings.
9
Jackson testified that she was a close friend of the petitioner’s and that
he had dated Cox for a while.
10
The petitioner takes issue with the habeas court’s statement that ‘‘[t]he
sequence of events surrounding the shooting of the victim described by
. . . Phelmetta [was] unassailable.’’ The petitioner contends that this deter-
mination is clearly erroneous because (1) Kovera’s testimony called into
question Phelmetta’s ability to accurately perceive and recall the events
surrounding the murder, and (2) Newell described the events immediately
preceding the shooting as having transpired much more quickly than did
Phelmetta, and without the shooter having first peered into her side of the
car, which could suggest that Phelmetta had less of an opportunity to observe
the shooter than she indicated at trial. The habeas court did not determine,
however, that Phelmetta’s identification of the petitioner was unassailable.
We take the court’s point simply to be that the overall sequence of events
that the jury reasonably could have found—a man wearing a hoodie
approached the car from across Columbus Avenue, walked up to the victim’s
window, fired point blank into the car, crossed back onto Washington Street,
and was seen fleeing on Frank Street a few minutes later—is generally
consistent with the testimony of Phelmetta, Newell and Diaz, each of whom
was an unbiased observer.
11
For the same reason, we are not persuaded by the petitioner’s argument
that the habeas court gave insufficient credence to the testimony of those
witnesses that they did not notify law enforcement of Napoleon’s confessions
for fear that he would retaliate. Of course, the court may have discounted
that testimony because none of the witnesses came forward to clear the
petitioner’s name even after Napoleon died, or for twelve years thereafter.
12
The two were no longer married at the time of the habeas trial in 2017.
13
In his habeas petition, the petitioner alleged violations of his due process
rights under both the fourteenth amendment to the United States constitu-
tion and article first, §§ 8 and 9, of the constitution of Connecticut. However,
because the petitioner has neither briefed the state constitutional question
nor presented any argument as to why article first, §§ 8 and 9, affords
broader protection than its federal counterpart, we limit our analysis to
the petitioner’s rights under the fourteenth amendment. See, e.g., State v.
Delgado, 323 Conn. 801, 805 n.4, 151 A.3d 345 (2016); State v. Gonzalez, 278
Conn. 341, 347 n.9, 898 A.2d 149 (2006).
14
Because we resolve the petitioner’s actual innocence claim on the merits;
see part I of this opinion; we need not address his predicate claim that
Cannatelli acted deficiently in failing to withdraw that claim during the first
habeas trial. The petitioner states in his brief that he contends that Cannatelli
provided ineffective assistance only to overcome the respondent’s assertion
that that his actual innocence claim is barred by the doctrine of res judicata.
15
Anderson stated that, to the best of his knowledge, there is no Geny
Street in either New Haven or Hamden, suggesting that the entry was likely
a scrivener’s error.
16
The call records indicate that both calls were for a single passenger.
That is to say, on each document, the field titled ‘‘# Psgrs’’ has an entry of
‘‘1.’’ Anderson’s testimony did not indicate whether, if the call had in fact
been made for two passengers, Metro Taxi’s ordinary business practice
would have been to indicate that by entering a ‘‘2’’ on the ‘‘# Psgrs’’ field
of the form. It is impossible to know, then, whether the jury may have
interpreted those documents as evidence that only Jackson attended Cox’
celebration.
17
In Miller, the United States Supreme Court held that mandatory life
imprisonment without the possibility of parole for those who were under
the age of eighteen at the time of their crimes violates the eighth amendment’s
prohibition against cruel and unusual punishment. See Miller v. Alabama,
supra, 567 U.S. 489.
18
Public Act 15-84, codified at General Statutes § 54-125a (f) (1) (A),
provides in relevant part: ‘‘[A] person convicted of one or more crimes
committed while such person was under eighteen years of age, who is
incarcerated on or after October 1, 2015, and who received a definite sen-
tence or total effective sentence of more than ten years for such crime or
crimes prior to, on or after October 1, 2015, may be allowed to go at large
on parole in the discretion of the panel of the Board of Pardons and Paroles
for the institution in which such person is confined, provided . . . if such
person is serving a sentence of fifty years or less, such person shall be
eligible for parole after serving sixty [percent] of the sentence or twelve
years, whichever is greater . . . .’’