Ross v. Commissioner of Correction ( 2021 )

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MAURICE ROSS v. COMMISSIONER
OF CORRECTION
(SC 20281)
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 his trial counsel provided ineffective
assistance by failing to object to certain improper remarks by the prose-
cutor during closing argument. Specifically, the prosecutor stated in her
closing argument that the state’s firearms expert, S, had testified that
a purposeful trigger pull was required to fire the petitioner’s gun, even
though S did not make that statement and was prevented from answering
the prosecutor’s leading question to that effect when the petitioner’s
trial counsel successfully objected to it. The habeas court rendered
judgment denying the petition, concluding that the petitioner had failed
to demonstrate that he suffered prejudice. On the granting of certifica-
tion, the petitioner appealed to the Appellate Court, which affirmed the
habeas court’s judgment. The Appellate Court concluded that, although
at least one of the prosecutor’s remarks during closing argument was
improper, the doctrine of collateral estoppel barred the petitioner from
litigating the issue of prejudice because, in the petitioner’s direct appeal
from his conviction, the Appellate Court already had determined, in the
context of resolving his claim of prosecutorial impropriety, that the
same improper remarks did not prejudice him. Thereafter, the petitioner,
on the granting of certification, appealed to this court. Held:
1. The Appellate Court incorrectly concluded that the petitioner was collater-
ally estopped from litigating the issue of whether he was prejudiced by
his trial counsel’s failure to object to the prosecutor’s improper remarks
during closing argument, as the issue in the present case was not identi-
cal to that presented in the petitioner’s direct appeal of his conviction:
the petitioner’s claim of prosecutorial impropriety in his direct appeal
required the Appellate Court to apply the factors set forth in State v.
Williams (204 Conn. 540), and, consistent with Williams and its progeny,
the Appellate Court properly considered trial counsel’s failure to object
as evidence that the petitioner was not prejudiced, and it was this
aspect of the Williams analysis that made it impossible to conclude
that collateral estoppel barred the petitioner from litigating the issue
of prejudice in his habeas action; moreover, the application of the doc-
trine of collateral estoppel would preclude the petitioner from seeking
a remedy for conduct that he claims affected not only his criminal trial
but also his likelihood of success on appeal, and, thus, the application
of that doctrine would be fundamentally unfair and inconsistent with
due process and the principles underlying the writ of habeas corpus.
2. The petitioner failed to demonstrate that he was prejudiced by his trial
counsel’s failure to object to the prosecutor’s improper remarks and,
therefore, could not prevail on the merits of his ineffective assistance
claim: the failure of trial counsel to object to the remarks did not
undermine this court’s confidence in the verdict, as the impropriety
was confined to the prosecutor’s closing argument, and the trial court
instructed the jury that the arguments of counsel did not constitute
evidence; moreover, although the prosecutor mischaracterized S’s testi-
mony, S’s actual testimony constituted strong evidence that the gun that
the defendant used to commit the murder of which he had been convicted
did not fire accidentally, as the petitioner had claimed; furthermore, the
petitioner’s own statements and actions before and after the shooting
provided strong evidence that he acted intentionally, including evidence
that the petitioner believed that the victim had arranged for two of her
male friends to assault him, that he purchased a gun thereafter for the
purpose of killing the men, and that he did not call for help after he
shot the victim.
Argued June 1, 2020—officially released January 11, 2021*
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 to the Appellate
Court, Lavine, Elgo and Bear, Js., which affirmed the
habeas court’s judgment, and the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Rebecca Barry, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
KAHN, J. The petitioner, Maurice Ross, appeals1 from
the judgment of the Appellate Court, which affirmed
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus. The petitioner
claims that the Appellate Court incorrectly concluded
that the doctrine of collateral estoppel barred him from
litigating the issue of whether he was prejudiced by his
trial counsel’s failure to object to the improper com-
ments of the prosecutor during closing argument at his
criminal trial. The respondent, the Commissioner of
Correction, argues that the Appellate Court correctly
held that the doctrine precluded the petitioner from
litigating the issue of prejudice. In the alternative, the
respondent contends that the judgment of the Appellate
Court may be affirmed on the basis that the petitioner
has failed to demonstrate that he suffered prejudice
from his criminal trial counsel’s allegedly deficient per-
formance. Although we conclude that the doctrine of
collateral estoppel does not apply under the circum-
stances of the present case, we affirm the judgment of
the Appellate Court on the ground that the petitioner
has failed to demonstrate prejudice.
The record reveals the following relevant facts and
procedural history. Following a jury trial, the petitioner
was convicted of murder in violation of General Statutes
§ 53a-54a (a). See State v. Ross, 151 Conn. App. 687,
688, 95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d
271 (2014), and cert. denied, 314 Conn. 926, 101 A.3d 272(2014). On appeal to the Appellate Court, the petitioner
claimed that the prosecutor’s improper comments dur-
ing closing argument violated his constitutional right
to a fair trial. Id. Although the Appellate Court con-
cluded that at least one of the prosecutor’s comments
was improper, it affirmed the judgment of conviction
on the basis of its conclusion that the petitioner had not
been prejudiced by the improper remarks. Id., 688, 706.
The Appellate Court set forth the following relevant
facts that the jury reasonably could have found. ‘‘In
early February, 2009, the [petitioner] and the victim,
Sholanda Joyner, were involved in a romantic relation-
ship. The two had known each other since they were
children, and had dated intermittently during the pre-
ceding eleven years. The victim’s relationship with the
[petitioner] was, as the victim’s sister described it, ‘dys-
functional . . . .’
‘‘Several days before February 5, 2009, the [petitioner]
went to the victim’s apartment on Woolsey Street in
New Haven and encountered two of her male acquain-
tances. A physical altercation between the two men
and the [petitioner] ensued, and the [petitioner] was
forcefully ejected from the victim’s apartment. Shortly
thereafter, the [petitioner] purchased a revolver for the
purpose of killing the two men. The [petitioner]
returned to the victim’s apartment the next morning
and encountered the individuals who had assaulted him
the previous day. After displaying the revolver, the [peti-
tioner] took their money, cell phones, and some drugs.’’
Id., 688–89.
‘‘On February 5, 2009, the victim appeared, crying
. . . at her father’s doorstep. Approximately two
minutes later, the [petitioner] arrived and demanded
that the victim leave with him. Over the protests of the
victim’s stepmother, the [petitioner] grabbed the victim
by the arm and pulled her out the door. Later that
evening, at the home of the victim’s grandmother, the
victim was crying and pleading with the [petitioner] to
leave her alone. The [petitioner] again commanded the
victim to depart with him, and the two left.
‘‘After leaving the house of the victim’s grandmother
at approximately 11 p.m., the [petitioner] and the victim
walked to the victim’s apartment. Along the way, the
victim stopped and purchased some ecstasy pills and
phencyclidine (PCP). The victim and the [petitioner]
smoked the PCP while en route to the victim’s apart-
ment. After arriving at the victim’s home, the [peti-
tioner] and the victim went into the victim’s bedroom,
and both of them ingested ecstasy. At some point, the
[petitioner] retrieved a revolver and asked the victim
if she had ‘set [him] up . . . .’ The [petitioner] then
fired one gunshot into her head, intentionally killing
her. After moving the victim’s body next to the bed, the
[petitioner] left the apartment, locking the door behind
him, and [traveled] to Waterbury for several days. While
in Waterbury, the [petitioner] socialized at a club named
‘Club Paradise.’
‘‘The [petitioner] returned to New Haven on February
8, 2009. Two days later, he encountered Terrence Corni-
gans outside of a mosque in New Haven. Although the
two men were not acquainted, the [petitioner] con-
fessed to Cornigans that he had killed his girlfriend by
shooting her, and asked for money so that he could
leave the state. Cornigans refused to give the [peti-
tioner] any money, but agreed to drive him home. The
[petitioner] instead directed Cornigans to drive him by
the victim’s apartment on Woolsey Street. Shortly there-
after, Cornigans returned the [petitioner] to the mosque.
Later that night, Cornigans reported to the police what
the [petitioner] had told him about killing his girlfriend.
The police went to the victim’s apartment and discov-
ered her body. The [petitioner] turned himself in to the
police the following day.’’ Id., 689–90.
At his criminal trial, the petitioner admitted that he
had shot the victim but claimed that the gun had fired
accidentally. Id., 690–91. Because the petitioner admit-
ted to the shooting, the key issue at trial was his intent.
In support of its burden to prove that the petitioner
intentionally fired the gun, the state presented the testi-
mony of James Stephenson, a firearms and toolmark
examiner with the state of Connecticut. Stephenson
testified regarding the operation of the petitioner’s gun,
a ‘‘.32 S&W long caliber Harrington & Richardson
revolver . . . .’’ Stephenson had examined the petition-
er’s firearm for multiple purposes, including to evaluate
the amount of force required to pull the trigger.2 Ste-
phenson testified that there are two ways to fire the
petitioner’s revolver, single action and double action.
In a single action trigger pull, the hammer is first pulled
back, and then the trigger is pulled. In a double action
trigger pull, the trigger is pulled back all the way without
first cocking the hammer. Stephenson’s tests revealed
that between three and one-half to five and one-half
pounds of pressure are required to fire the weapon in
a single action trigger pull. A double action pull requires
seven and one-half pounds of pressure. During the
state’s direct examination of Stephenson, the following
exchange occurred:
‘‘[The Prosecutor]: Talking about the single action
again . . . with the hammer pulled back, if an individ-
ual was holding the gun, and just waving it around,
without more, would that cause the gun to fire a bullet?
‘‘[Stephenson]: It requires a force placed upon that
trigger to cause it to fire. If the person doesn’t have
their finger on the trigger, if the gun is—if you were to
hold the gun in a fashion where, as explained in single
action, if my hand were back here, and I was just waving
it around, it’s not going to fire. It requires that pressure
placed against that trigger to cause it to fire.
‘‘[The Prosecutor]: Is the pressure pulling it back-
ward purposely?
‘‘[Criminal Trial Counsel]: Objection, Your Honor.
Again, to the characterization purposely or not, that’s
a conclusion that I think ultimately is going to go to
this jury. That’s not appropriate.
‘‘[The Court]: Are you claiming it?
‘‘[The Prosecutor]: No, I’ll withdraw it.’’
The prosecutor continued to question Stephenson,
who testified that, with regard to a double action trigger
pull, an individual could not, simply by waving the gun
around with nothing more, cause the gun to fire. The
prosecutor did not repeat the question that had
prompted criminal trial counsel’s objection.
During closing argument, the prosecutor summarized
Stephenson’s testimony as follows: ‘‘The evidence shows,
James Stephenson, the ballistics expert, he indicated
that [he] and other ballistics experts, who check and
recheck each other’s work, examined this gun, and he
stated, based on years of experience, and examining
thousands of guns, this gun does not just go off, as the
[petitioner] claimed, it requires a purposeful trigger pull
of between five pounds and seven and a half pounds.’’
(Emphasis added.) During her rebuttal argument, the
prosecutor again referred to Stephenson’s testimony,
stating, ‘‘Stephenson, [the] ballistics expert, he told you,
ladies and gentlemen of the jury, the gun is safe, don’t
worry, that this gun does not just go off. It takes a
purposeful action, a real pull.’’ (Emphasis added.) Also
in her rebuttal, the prosecutor stated: ‘‘I know a couple
of you indicated on voir dire that you shot guns, you
are familiar with guns, perhaps many of you are not,
however; this is, if you will, the smoking gun. If the
injury to her head, the conduct leading up to that night,
his conduct after, and all of the information that you
have is not enough to prove intent to prove murder,
then you will know when he fired this gun because, as
. . . Stephenson eloquently put it, it takes a purposeful
pull back, it does not go off. We asked him, if you are
shaking the gun around, waving the gun around, even
if you have your finger on the trigger, it doesn’t go off.
No, they tested the gun, there was no malfunction with
it. They test fired it at the laboratory. In order for this to
discharge a bullet, it takes a very deliberate, purposeful
act.’’ (Emphasis added.)
After his conviction was affirmed on direct appeal,
the petitioner instituted the present habeas action,
claiming that his criminal trial counsel rendered ineffec-
tive assistance by, inter alia, failing to object to the
prosecutor’s improper remarks during closing argu-
ment.3 The habeas court denied the petition. The court
determined that the petitioner had failed to demon-
strate, as required by Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that
he had suffered prejudice by his criminal trial counsel’s
failure to object.
On appeal, the Appellate Court did not address the
question of whether the habeas court correctly con-
cluded that the petitioner had failed to demonstrate
prejudice. Instead, the court held that the petitioner
was collaterally estopped from litigating the issue of
prejudice because, in the direct appeal, the Appellate
Court had ‘‘already determined that the prosecutor’s
improper comments did not prejudice the petitioner.’’
Ross v. Commissioner of Correction, 188 Conn. App.
251, 258, 204 A.3d 792 (2019). The Appellate Court
observed that, in the direct appeal, in support of his
claim of prosecutorial impropriety, the petitioner had
relied on the same improper remarks that now formed
the basis of his claim of ineffective assistance of coun-
sel. Id. The court reasoned, therefore, that it already
had determined in the direct appeal that those remarks
‘‘did not deprive the [petitioner] of a fair trial.’’ (Internal
quotation marks omitted.) Id. Accordingly, the Appel-
late Court affirmed the judgment of the habeas court
denying the petition. Id., 259. This certified appeal
followed.
I
We first address the petitioner’s claim that the Appel-
late Court incorrectly concluded that he was collaterally
estopped from litigating the issue of whether his crimi-
nal trial counsel’s failure to object to the prosecutor’s
improper remarks prejudiced him. The respondent con-
tends that the respective prejudice prongs of the tests
for prosecutorial impropriety and ineffective assistance
of counsel present identical issues. See State v. Wil-
liams, 204 Conn. 523, 539–40, 529 A.2d 653 (1987); see
also Strickland v. Washington, supra, 466 U.S. 694–95.
Specifically, the respondent claims that, because the
prejudice prongs of both tests require the petitioner to
prove that, but for the predicate conduct, it is probable,
or likely, that the result of the proceedings would have
been different, they are identical for purposes of the
doctrine of collateral estoppel. Therefore, the respon-
dent argues, because the Appellate Court already
applied Williams in the petitioner’s direct appeal to
conclude that the prosecutor’s improper remarks did
not prejudice him, he is collaterally estopped from
arguing in the habeas action that, pursuant to Strick-
land, he was prejudiced by his criminal trial counsel’s
failure to object to those remarks.4 Because we con-
clude that the issue in the present case is not identical
to that presented in the direct appeal, we agree with
the petitioner.
‘‘[T]he doctrines of collateral estoppel and res judi-
cata, commonly referred to as issue preclusion and
claim preclusion, respectively, have been described as
related ideas on a continuum. [C]laim preclusion pre-
vents a litigant from reasserting a claim that has already
been decided on the merits. . . . [I]ssue preclusion
. . . prevents a party from relitigating an issue that has
been determined in a prior suit.’’ (Internal quotation
marks omitted.) Board of Education v. New Milford
Education Assn., 331 Conn. 524, 532 n.5, 205 A.3d 552(2019). ‘‘For an issue to be subject to collateral estoppel,
it must have been fully and fairly litigated in the first
action. It also must have been actually decided and the
decision must have been necessary to the judgment.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Charlotte Hungerford Hospital, 308 Conn. 140,
146, 60 A.3d 946 (2013).
This court has applied the doctrines of collateral
estoppel and res judicata in the habeas context. See,
e.g., In re Application for Writ of Habeas Corpus by
Ross ex rel. Ross, 272 Conn. 653, 662, 866 A.2d 542(2005) (appeal barred by doctrine of collateral estoppel
because plaintiffs in error had ‘‘been afforded a full and
fair opportunity to litigate the issue of . . . alleged
incompetency [of defendant] in prior proceedings’’);
McCarthy v. Warden, 213 Conn. 289, 294–96, 567 A.2d
1187 (1989) (doctrine of res judicata precluded relitiga-
tion of identical due process claim between identical
parties previously adjudicated in federal court), cert.
denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d
667 (1990). In the criminal context generally, we have
observed that ‘‘[w]hether two claims . . . are the same
for the purposes of res judicata should . . . be consid-
ered in a practical frame and viewed with an eye to all
the circumstances of the proceedings.’’ (Internal quota-
tion marks omitted.) McCarthy v. Warden, supra, 295.
In applying the doctrine of res judicata in the habeas
context, we have recognized the significance of the
unique circumstances raised by collaterally attacking a
final judgment. Specifically, we have stated that,
‘‘[a]lthough the doctrine of res judicata in its fullest
sense bars claims that could have been raised in a prior
proceeding, such an application in the habeas corpus
context would be unduly harsh. . . . Unique policy
considerations must be taken into account in applying
the doctrine of res judicata to a constitutional claim
raised by a habeas petitioner. . . . Foremost among
those considerations is the interest in making certain
that no one is deprived of liberty in violation of his or
her constitutional rights. . . . With that in mind, we
limit the application of the doctrine of res judicata in
circumstances such as these to claims that actually
have been raised and litigated in an earlier proceeding.’’
(Internal quotation marks omitted.) State v. Miranda,
274 Conn. 727, 773, 878 A.2d 1118 (2005) (Katz, J., dis-
senting).5
The same policy considerations that we have relied
on to circumscribe the application of the doctrine of
res judicata to habeas proceedings guide us in applying
the doctrine of collateral estoppel in this context.6 That
is, the writ of habeas corpus permits a collateral attack
on a final judgment in order to provide ‘‘a remedy for
a miscarriage of justice or other prejudice. . . . As this
court stated in Bunkley v. Commissioner of Correction,
222 Conn. 444, 460–61, 610 A.2d 598 (1992) [overruled
in part on other grounds by Small v. Commissioner of
Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008)], the principal purpose of the
writ of habeas corpus is to serve as a bulwark against
convictions that violate fundamental fairness.’’ (Inter-
nal quotation marks omitted.) Kaddah v. Commis-
sioner of Correction, 324 Conn. 548, 561, 153 A.3d 1233(2017). We must therefore carefully balance the inter-
ests of finality that drive the doctrine of collateral estop-
pel against the constitutional rights secured by the writ.
Moreover, we consider the question of whether the
issues presented in the habeas action and the direct
appeal are identical, ‘‘in a practical frame,’’ and view it
‘‘with an eye to all the circumstances of the proceed-
ings.’’ (Internal quotation marks omitted.) McCarthy v.
Warden, supra, 213 Conn. 295.
Although, when viewed broadly, the question pre-
sented by the prejudice prongs of both Williams and
Strickland—whether the petitioner was deprived of his
right to a fair trial—suggests that the issues are identi-
cal, there is a key distinction between the operation
and focus of the two tests, which answer the ultimate
question by employing substantially different means,
by evaluating the effect of different conduct undertaken
by different actors. See Strickland v. Washington,
supra, 466 U.S. 687; State v. Williams, supra, 204 Conn.
539. Williams evaluates the prejudicial effect of the
conduct of the prosecutor; Strickland’s focus is on the
prejudicial effect of defense counsel’s conduct. As a
result, the analyses employed by Williams and Strick-
land differ. It is undeniable that there is considerable
overlap in the evaluation of prejudice for both claims.
Understood practically, however, the connection
between the issue of prejudice and trial counsel’s failure
to object differs significantly in the two contexts. In a
habeas action, trial counsel’s failure to object forms the
basis for a petitioner’s claim that counsel’s performance
was deficient. With respect to the prejudice prong of
Strickland, the question is whether the effect of that
failure to object prejudiced the petitioner. By contrast,
on direct appeal, the same failure to object operates to
support the conclusion that the alleged prosecutorial
impropriety did not prejudice a defendant.
The petitioner’s claim of prosecutorial impropriety
in the direct appeal required the Appellate Court to
apply what have come to be known as the Williams
factors. See State v. Williams, supra, 204 Conn. 540.
Specifically, in Williams, we explained that, in
determining whether a defendant was deprived of his
due process right to a fair trial by prosecutorial impro-
priety, courts should consider: ‘‘[1] the extent to which
the [impropriety] was invited by defense conduct or
argument . . . [2] the severity of the [impropriety]
. . . [3] the frequency of the [impropriety] . . . [4] the
centrality of the [impropriety] to the critical issues in
the case . . . [5] the strength of the curative measures
adopted . . . and [6] the strength of the state’s case.’’
(Citations omitted.) Id. In evaluating the severity of the
impropriety, we have accorded significant weight to
defense counsel’s failure to object, explaining that such
a failure is ‘‘a strong indicator that [defense] counsel
did not perceive [the improprieties] as seriously jeop-
ardizing the defendant’s fair trial rights.’’ State v. Jones,
320 Conn. 22, 38, 128 A.3d 431 (2015); see also State
v. Angel T., 292 Conn. 262, 289, 973 A.2d 1207 (2009)
(‘‘[w]hen considering whether prosecutorial [impropri-
ety] was severe, this court consider[s] it highly signifi-
cant that defense counsel failed to object to any of the
improper remarks, [to] request curative instructions,
or [to] move for a mistrial’’ (internal quotation marks
omitted)). Accordingly, ‘‘the fact that defense counsel
did not object to one or more incidents of [impropriety]
must be considered in determining whether and to what
extent the [impropriety] contributed to depriving the
defendant of a fair trial and whether, therefore, reversal
is warranted.’’ State v. Stevenson, 269 Conn. 563, 576,
849 A.2d 626 (2004).
Consistent with Williams and its progeny, in deter-
mining whether the petitioner had been prejudiced by
the prosecutor’s improper remarks during closing argu-
ment, the Appellate Court on direct appeal gave signifi-
cant weight to criminal trial counsel’s failure to object
to those remarks at trial. Specifically, in concluding that
the improper remarks had not deprived the petitioner of
his right to a fair trial, the Appellate Court considered it
‘‘highly significant that [criminal trial] counsel failed to
object to any of the improper remarks, [to] request cura-
tive instructions, or [to] move for a mistrial. [Criminal
trial] counsel, therefore, presumably [did] not view the
alleged impropriety as prejudicial enough to seriously
jeopardize the [petitioner’s] right to a fair trial. . . .
Given the [petitioner’s] failure to object, only instances
of grossly egregious misconduct will be severe enough
to mandate reversal.’’ (Internal quotation marks omit-
ted.) State v. Ross, supra, 151 Conn. App. 701. On appeal,
accordingly, the Appellate Court properly considered
criminal trial counsel’s failure to object as evidence that
the petitioner was not prejudiced by the prosecutor’s
improper remarks.
In drawing the inference of lack of prejudice on the
basis of criminal trial counsel’s failure to object, the
Appellate Court, consistent with Williams and its prog-
eny, presumed that counsel was competent. The heavy
reliance placed on criminal trial counsel’s failure to
object as evidence of a lack of prejudice in a direct
appeal could naturally lead to a claim of ineffective
assistance in a subsequent habeas action. It is this
aspect of the Williams analysis—reliance on counsel’s
failure to object as evidence of a lack of prejudice—
that renders it impossible to conclude that collateral
estoppel bars the petitioner from litigating the issue of
whether he was prejudiced at trial and on direct appeal
by his criminal trial counsel’s failure to object to the
prosecutor’s improper remarks.
As for Williams’ heavy reliance on trial counsel’s fail-
ure to object as evidence of a lack of prejudice, in the
present case, the application of the doctrine of collat-
eral estoppel would leave the petitioner with no ability
to establish how his criminal trial counsel’s failure to
object affected his trial and his appeal.7 Put differently,
applying the doctrine under these circumstances would
effectively preclude him from seeking a remedy for
conduct that he claims affected not only his criminal
trial but also his likelihood of success on appeal.
Applying the doctrine of collateral estoppel to bar the
petitioner from litigating whether his criminal trial
counsel’s failure to object to the improper remarks prej-
udiced him at trial and on direct appeal would be funda-
mentally unfair and, therefore, inconsistent with due
process and the principles underlying the writ of
habeas corpus.
II
We next address the issue of whether the judgment of
the Appellate Court may be affirmed on the alternative
ground that the petitioner has failed to demonstrate that
he suffered prejudice from his criminal trial counsel’s
failure to object to the improper remarks made by the
prosecutor during closing argument. We conclude that
the petitioner failed to demonstrate prejudice as
required by Strickland.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. Strickland requires that a peti-
tioner 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 guaran-
teed . . . 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.’’ (Internal quotation marks
omitted.) Meletrich v. Commissioner of Correction, 332
Conn. 615, 626–27, 212 A.3d 678 (2019). A reasonable
probability is one that is ‘‘sufficient to undermine confi-
dence in the verdict that resulted in his appeal.’’ (Inter-
nal quotation marks omitted.) Hickey v. Commissioner
of Correction, 329 Conn. 605, 618, 188 A.3d 715 (2018).
As we already have noted, a reviewing court may
resolve the petitioner’s claim on either ground. Mele-
trich v. Commissioner of Correction, supra, 627.
‘‘The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . The application of
historical facts to questions of law that is necessary
to determine whether the petitioner has demonstrated
prejudice under Strickland, however, is a mixed ques-
tion of law and fact subject to our plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Michael T. v. Commissioner of Correction, 307 Conn.
84, 90–91, 52 A.3d 655 (2012). In Diaz v. Commissioner
of Correction, 125 Conn. App. 57, 67, 6 A.3d 213 (2010),
cert. denied, 299 Conn. 926, 11 A.3d 150 (2011), the
Appellate Court reflected on the ‘‘interplay’’ between a
petitioner’s direct appeal and subsequent habeas action,
observing that its conclusion in the direct appeal, that
the trial court’s improper comment had constituted
harmless error, ‘‘while not dispositive, [was] persua-
sive.’’
The petitioner in the present case must demonstrate
that there is ‘‘a reasonable probability that, but for coun-
sel’s [alleged] unprofessional errors, the result of the
proceeding would have been different.’’ Strickland v.
Washington, supra, 466 U.S. 694. Our review of the
record persuades us that the petitioner has failed to
demonstrate at the habeas court that he was prejudiced
by his criminal trial counsel’s failure to object to the
improper remarks.
We begin with the Appellate Court’s decision in the
direct appeal, discounting that decision’s reliance on
criminal trial counsel’s failure to object. The Appellate
Court agreed with the petitioner that the prosecutor’s
mischaracterization of the testimony of the state’s fire-
arms expert during closing argument was improper.
State v. Ross, supra, 151 Conn. App. 695. Specifically,
the prosecutor stated several times in her closing argu-
ment that Stephenson had testified that a purposeful
pull was required to fire the petitioner’s revolver,
despite the fact that Stephenson did not make that
statement, and, in fact, was prevented from answering
the prosecutor’s leading question to that effect when
criminal trial counsel successfully objected to it. See
id., 698. In rejecting the petitioner’s claim that he was
prejudiced by the improper remarks, the Appellate
Court relied on the trial court’s general instructions.
Id., 702–703. Those instructions advised the jury that
arguments made by counsel are not testimony or evi-
dence, and that it must base its verdict solely on the
evidence. See id. The Appellate Court acknowledged
that the impropriety went to a central issue in the case—
the petitioner’s mental state—and was not invited by
criminal trial counsel. Id., 705. The state’s evidence
regarding the petitioner’s mental state, however, was
strong. The Appellate Court summarized the evidence
on which it relied in arriving at that conclusion: ‘‘[T]he
state presented evidence that the [petitioner] and the
victim were involved in a tumultuous relationship, that
the [petitioner] believed the victim had arranged for
two of her male acquaintances to assault him, that he
purchased a revolver for the purpose of killing these
two men, and that immediately before shooting the
victim in the head, he asked her, ‘are you trying to set
me up?’ Moreover, the state presented evidence that
the [petitioner] did not summon help for the victim
after shooting her, but instead left the apartment, locked
the door behind him, and fled to Waterbury, where
he socialized at a nightclub with another individual.’’
Id., 704.
In its memorandum of decision denying the petition,
the habeas court observed that ‘‘[t]he petitioner prof-
fered no evidence at the habeas trial regarding prejudice
that differs from that evaluated by the Appellate Court
on direct appeal.’’ Our review of the record before the
habeas court reveals that, on the issue of the prosecu-
tor’s improper remarks, the petitioner presented solely
the testimony of his criminal trial counsel, which per-
tained not to prejudice, but to whether his criminal
trial counsel’s failure to object, to request a curative
instruction or to move for a mistrial constituted defi-
cient performance.8 On the issue of prejudice, habeas
counsel argued to the habeas court that the improper
remarks went to the key issue in the case—whether
the petitioner intended to pull the trigger.
The failure of the petitioner’s criminal trial counsel
to object to the improper remarks does not undermine
our confidence in the verdict. The impropriety was con-
fined to the prosecutor’s closing argument, and the
court instructed the jury that the arguments of counsel
do not constitute evidence. The improper remarks also
must be understood in the context of the strength of
the state’s case. Although the prosecutor incorrectly
stated that Stephenson testified that the petitioner’s
revolver required a ‘‘purposeful’’ pull to fire, Stephen-
son’s actual testimony constituted strong evidence that
the gun did not fire accidentally, as the petitioner had
claimed. Specifically, the prosecutor asked Stephenson,
‘‘if an individual was holding the gun, and just waving
it around, without more, would that cause the gun to
fire a bullet?’’ Stephenson responded: ‘‘It requires a
force placed upon that trigger to cause it to fire. If the
person doesn’t have their finger on the trigger, if the
gun is—if you were to hold the gun in a fashion where,
as explained in single action, if my hand were back
here, and I was just waving it around, it’s not going to
fire. It requires that pressure placed against that trigger
to cause it to fire.’’
As the Appellate Court observed, the evidence pre-
sented by the state demonstrated that the petitioner
believed that the victim had arranged for two of her
male friends to assault him, that the petitioner pur-
chased a gun shortly thereafter for the purpose of killing
the men, and that, immediately prior to shooting her,
the petitioner accused the victim of setting him up.
State v. Ross, supra, 151 Conn. App. 704. Additional
evidence presented by the state, on which the jury prop-
erly could have relied to conclude that the petitioner
intentionally pulled the trigger, revealed that he did not
call for help after he shot the victim. Instead, he left her
body in her apartment and went to Waterbury, where
he went to a club and stayed for several days. Five days
after shooting the victim, the petitioner approached a
stranger outside of a mosque in New Haven, Cornigans,
and told him that he had shot the victim. Specifically,
the petitioner told Cornigans that he and the victim
were in her apartment. He was on the bed when he
heard a knock on the door and saw rays of light. He
then walked toward the victim, said, are you trying to
‘‘set me up’’ and shot her in the temple. When he spoke
to Cornigans, the petitioner did not state that he acci-
dentally shot the victim when he was waving the gun
around. He did, however, ask Cornigans to help him
move the body and asked for money so he could leave
the state.
The state’s evidence that the petitioner intentionally
shot the victim was compelling. Although Stephenson’s
testimony countered the petitioner’s claim that he shot
the victim accidentally, it was the petitioner’s own state-
ments and actions before and after the shooting that
provided the strongest evidence that he acted intention-
ally. He purchased the gun for the purpose of killing two
men who he believed assaulted him upon the victim’s
request. He admitted to Cornigans that he said to the
victim, you ‘‘set me up,’’ and that he then shot her in
the temple. All of his actions, including leaving her body
in the apartment, going to parties in Waterbury, and
asking Cornigans to help him move the body and to
give him money so he could leave the state, provided
evidence of consciousness of guilt and defied his claim
of an accidental shooting. In light of the strength of the
state’s case, we conclude that the petitioner has failed
to demonstrate a ‘‘reasonable probability that, but for
counsel’s [alleged] unprofessional errors, the result of
the proceeding would have been different.’’ (Internal
quotation marks omitted.) Meletrich v. Commissioner
of Correction, supra, 332 Conn. 627.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* January 11, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
This court granted the petitioner’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court correctly deter-
mine that the doctrine of collateral of estoppel precluded the petitioner
from litigating the issue of whether [criminal trial] counsel’s failure to object
to the prosecutor’s improper comments during the petitioner’s criminal trial
prejudiced him as part of an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), because the Appellate Court had previously held in the petitioner’s
direct appeal from his criminal conviction that those same improper com-
ments did not deprive him of a fair trial?’’ And (2) ‘‘[i]f the doctrine of
collateral estoppel does not preclude the petitioner from litigating the issue
of prejudice, can the petitioner prevail under Strickland v. Washington,
supra, 466 U.S. 668?’’ Ross v. Commissioner of Correction, 331 Conn. 915,
915–16, 204 A.3d 703 (2019).
2
One of Stephenson’s coworkers had performed an initial examination
of the firearm and confirmed that it was functioning properly. Stephenson
cosigned the report on that examination.
3
The petitioner also claimed, before the habeas court, that his criminal
trial counsel rendered ineffective assistance by failing to present expert
testimony of a toxicologist in support of a planned intoxication defense.
The Appellate Court concluded that the habeas court had properly rejected
this claim. See Ross v. Commissioner of Correction, 188 Conn. App. 251,
255, 204 A.3d 792 (2019). That determination is not before us in this certi-
fied appeal.
4
The respondent concedes that the claims presented in the petitioner’s
direct appeal and in his habeas action are different. In the direct appeal,
the petitioner claimed that the prosecutorial improprieties deprived him of
his right to due process, whereas, in this habeas action, he argues that his
criminal trial counsel’s ineffective assistance violated his right to counsel
under the sixth and fourteenth amendments to the United States constitution.
Thus, claim preclusion could not apply to the petitioner’s claim of ineffective
assistance of counsel.
5
Outside of the habeas context, res judicata, or claim preclusion, prevents
the parties to a prior action, or their privies, from pursuing not only claims
that were actually made in the prior action, but also any claims that could
have been raised. See, e.g., Ventres v. Goodspeed Airport, LLC, 301 Conn.
194, 215–16, 21 A.3d 709 (2011) (concluding that res judicata precluded
parties to prior action from litigating claim that was not, but could have
been, made in prior action).
6
We are guided by the analysis of the Appellate Court in Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 6 A.3d 213 (2010), cert. denied,
299 Conn. 926, 11 A.3d 150 (2011). In that case, the Appellate Court concluded
that the petitioner’s claim of ineffective assistance of counsel was not barred
by the doctrine of res judicata. Id., 63. In his direct appeal, the petitioner
in Diaz argued that a comment made by the trial court in its final charge
to the jury violated his fourteenth amendment right to due process. Id., 60,
63. The court concluded that the remark, although improper, constituted
harmless error. Id., 60. In the petitioner’s subsequent habeas action, he
claimed that his criminal trial counsel had rendered ineffective assistance
by failing to object to the improper remark. Id. The habeas court determined
that the doctrine of res judicata barred the petitioner’s claim. Id., 61. On
appeal, the Appellate Court held that the habeas court had improperly
applied the doctrine of res judicata because the two claims—a fourteenth
amendment due process claim and an ineffective assistance of counsel claim
alleging violations of the sixth and fourteenth amendments to the United
States constitution—were not identical. Id., 63. The Appellate Court con-
cluded that the petitioner’s ineffective assistance claim was ‘‘a separate
claim, thus requiring separate legal analysis.’’ Id., 66.
7
Our ruling is limited to the circumstances presented in this case and
does not preclude the application of collateral estoppel in the habeas context.
For example, it might be appropriate to apply the doctrine of collateral
estoppel to a subsequent habeas claim when the lack of an objection by
defense counsel is either not an issue or was not held against a defendant
on direct appeal. That question is not before us.
8
The petitioner’s criminal trial counsel testified that it was his practice
to object to improper remarks during closing argument only for ‘‘egregious’’
improprieties. For less severe improprieties, he testified, he preferred to
avoid ‘‘highlighting’’ any improper remarks. He explained that it was his
view that interrupting opposing counsel during closing argument results in
‘‘bad vibes’’ from the jury. He did not offer any strategic reason for failing
to object outside of the presence of the jury, to request a curative instruction,
or to move for a mistrial.