Lance W. v. Commissioner of Correction ( 2021 )

***********************************************
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.
***********************************************
LANCE W. v. COMMISSIONER OF CORRECTION*
(AC 39968)
Elgo, Cradle and Suarez, Js.
Syllabus
The petitioner, who previously had been convicted of several crimes, includ-
ing murder and arson in the first degree, filed a second petition for a
writ of habeas corpus, claiming that D, his first habeas appellate counsel,
rendered ineffective assistance in the petitioner’s appeal to this court
from the denial of his first habeas petition. A police investigator, M,
had determined that a fire at the petitioner’s home, in which the victim
died, had been intentionally set with an accelerant, and S, the state
medical examiner who performed an autopsy on the victim, testified
that, because of the lack of soot in the victim’s bodily organs and low
level of carbon monoxide in the victim’s blood, she concluded that the
victim had died prior to the fire. The first habeas court, in denying
the first habeas petition, concluded, inter alia, that the petitioner had
presented no newly discovered evidence that proved his claim of actual
innocence and failed to establish that the scientific evidence admitted
at his criminal trial was false or invalid. The court also rejected the
petitioner’s assertions that his trial counsel, N, was ineffective in chal-
lenging the expert testimony of M and S and had a conflict of interest
in representing the petitioner in a civil matter against his homeowners
insurer. On the petitioner’s appeal to this court, D challenged only the
first habeas court’s rejection of the petitioner’s claims that N had a
conflict of interest and had inadequately cross-examined M and S as to
the cause of the victim’s death and the cause of the fire. This court
affirmed the judgment of the first habeas court. In his second petition
for a writ of habeas corpus, the petitioner alleged that D was ineffective
for having failed to challenge the first habeas court’s rejection of his
claims that he is actually innocent, that his conviction was based on
scientifically invalid evidence, and that N was ineffective in challenging
certain expert testimony adduced by the state pertaining to fire science
evidence and the cause of the victim’s death. The second habeas court
rejected the petitioner’s claims that D had rendered ineffective assis-
tance and rendered judgment denying the petition for a writ of habeas
corpus. On the granting of certification, the petitioner appealed to this
court. Held:
1. The habeas court did not err in concluding that D’s decision not to pursue
an actual innocence claim did not constitute ineffective assistance, as
the petitioner did not present affirmative proof of his innocence or
demonstrate that there was a reasonable probability that he would have
prevailed on an appeal from the first habeas court’s denial of that claim;
the petitioner’s assertion that he is actually innocent due to the unreliabil-
ity of the scientific evidence at his criminal trial was unpersuasive in
that unreliable evidence cannot logically constitute affirmative proof of
actual innocence, and, even if the petitioner had proven that the evidence
was unreliable, such a determination, although it might undermine the
jury’s guilty verdict, is not affirmative proof of his innocence.
2. The petitioner could not prevail on his claim that D rendered ineffective
assistance in having failed to challenge the first habeas court’s rejection
of the petitioner’s assertion that his right to due process was violated
because his conviction was based on false and invalid scientific evidence:
the evidence the petitioner presented to establish that there were alterna-
tive explanations relative to the conclusions reached by M and S as to
the cause of the fire and the victim’s death fell short of proving that
their conclusions were false or scientifically invalid, and the jury had
been made aware of, and presumably considered, the existence of alter-
native explanations, the existence of which M and S acknowledged on
cross-examination at the criminal trial; accordingly, this court was not
left with a firm belief that the petitioner most likely would not have
been convicted if the jury had been presented with additional competing
evidence such as the opinions of expert witnesses he presented at the
first habeas trial who disagreed with M and S as to the cause of the
fire and the victim’s death, and, thus, it was not likely that the petitioner
would have prevailed on an appeal from the rejection of his due pro-
cess claim.
3. The habeas court properly concluded that D did not render ineffective
assistance in deciding not to pursue the petitioner’s claim that N was
ineffective in challenging the testimony of M and S that pertained to
the cause of the fire and the victim’s death: the petitioner’s contention
that N should have presented expert testimony that focused on M’s
alleged failure to follow the scientific method was unavailing, as N’s
choice of experts did not give rise to a claim of deficient performance,
M followed the essential steps in the scientific method, a finding by the
first habeas court that the petitioner did not argue was clearly erroneous,
and it was unnecessary for N to present expert testimony to refute M’s
testimony that an accelerant was the only possible source of a pour
pattern found on the floor of the home, M having conceded on cross-
examination that there were other reasonable explanations for the pour
pattern that did not involve accelerants; moreover, in claiming that N
was ineffective in failing to present evidence that undercut S’s opinion
as to the time of the victim’s death, the petitioner ignored the fact that
N presented evidence of that nature by way of requiring S to acknowledge
having examined the body of another burn victim who did not have
soot in her lungs or carbon monoxide in her blood, and the evidence
the petitioner presented at the first habeas trial did not undermine S’s
opinions any more than her own confession did; furthermore, even if
N’s challenge to the testimony of M and S could be considered deficient,
the petitioner failed to prove that he was prejudiced, as N demonstrated
through effective cross-examination that the conclusions of M and S
were not beyond reproach, and, as the jury, faced with the concessions
by M and S, still found the petitioner guilty, it was not reasonably
probable that D would have succeeded in demonstrating that N’s counsel
was constitutionally ineffective.
Argued January 4—officially released May 4, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Sferrazza, J., granted in part
the respondent’s motion to dismiss the petition; there-
after, the matter was tried to the court, Sferrazza, J.;
judgment denying the petition, from which the peti-
tioner, on the granting of certification, appealed to this
court. Affirmed.
Erica A. Barber, assigned counsel, for the appellant
(petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and David M. Carlucci, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Lance W., appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus alleging ineffective assis-
tance of his first habeas appellate counsel.1 On appeal,
the petitioner claims that the habeas court erred in
rejecting his claim that his first habeas appellate coun-
sel was ineffective in failing to challenge on appeal the
first habeas court’s rejection of his claims that (1) he
is actually innocent of the crimes of which he was
convicted, (2) his constitutional right to due process
was violated because his conviction was based on scien-
tifically invalid evidence, and (3) his trial counsel was
ineffective in challenging the expert testimony adduced
by the state pertaining to the cause of the victim’s death
and the fire science evidence. We affirm the judgment
of the habeas court.
The following facts, as recited by our Supreme Court
in upholding this court’s affirmance of the petitioner’s
conviction on direct appeal, are relevant to our resolu-
tion of the petitioner’s claims. ‘‘On November 19, 1994,
at approximately 3:19 a.m., Ronald McClain and Sheila
McClain, neighbors who lived across the street from
the [petitioner on Hillside Avenue in Plymouth], awoke
to screams from the [petitioner’s] children. Ronald
McClain observed an orange glow coming from the left
side of the [petitioner’s] house. He also observed the
[petitioner’s] two children on the roof of the front porch,
a ladder against the front porch and the [petitioner]
standing at the bottom of the ladder. [Ronald] McClain
called 911 and went downstairs to let the [petitioner
and his children] into [McClain’s] home. The children
were screaming that their house was on fire and that
they could not find their mother [Wendy W.]. The [peti-
tioner] stated that his wife was in the house, that he
could not get her out and that he did not know if she
had come home. The children remained at the McClain
home while the [petitioner] and Ronald McClain
returned to the burning house. The [petitioner] again
stated that he did not know if his wife had come home
that evening.
‘‘The firefighters arrived a few minutes later and
found the [petitioner] outside the house, confused and
attempting to put water on the fire with a garden hose.
The [petitioner] told the firefighters that he did not
know his wife’s whereabouts. Later, the [petitioner],
while he pointed to the den, told fireman Frederick
Telke, ‘Yes, she’s in here, she’s in here.’ When asked if
he was sure, the [petitioner] walked to the driveway
and pointed to his wife’s car.
‘‘Firefighters entered the home and approached the
den, where the fire was concentrated, but were unable
to remain due to the high temperatures, heavy smoke
and unstable floor. The body of the victim . . . was
later found in this area. Firefighters also entered the
second floor of the house and found only smoke dam-
age. They did not hear any smoke detector alarms.
‘‘Several hours later, Officer Gerald Allain of the
Plymouth [P]olice [D]epartment questioned the [peti-
tioner]. The [petitioner] stated that the victim smoked
cigarettes and that he recalled the smoke alarms going
off. He stated that the thick smoke forced him to his
knees [and that] he took the children to the porch roof.
‘‘On November 19, 1994, the [petitioner] gave a
signed, written statement to the police. He indicated
that the victim slept on the couch because their mar-
riage was ‘on the rocks.’ That same day, the [petitioner]
told the victim’s uncle, James Castiola, that he knew
what had happened. He stated that the victim had come
home, and had lain down on the couch, [near] approxi-
mately fifty videotapes. While on the couch, the victim
had lit a cigarette and had fallen asleep. The [petitioner]
told Castiola that the fire had been accelerated by the
videotapes, which cannot be put out when they catch
fire.
‘‘State Trooper Kevin McGurk was assigned to deter-
mine the cause and origin of the fire. He examined the
[petitioner’s] home the following morning and deter-
mined that the fire originated in the den. McGurk dis-
covered a pour pattern [consisting of a line of holes]
leading up to the area of origin, which indicated that
an accelerant had been used. On the basis of his obser-
vations, McGurk concluded that the fire had been inten-
tionally set. Other officers executed a search warrant
on the [petitioner’s] home and retrieved an empty bottle
of bleach from the basement and a can of acetone from
the storage shed. Joseph Cristino, a forensic analysis
engineer, examined the two smoke detectors retrieved
from the [petitioner’s] home. [Cristino found that it was
‘highly improbable’ that the first floor smoke detector
was working at the time of the fire and that, had the
battery been connected to the second floor detector,
there was a high probability that it would have worked
at the time of the fire.]
‘‘A notebook also was seized from the [petitioner’s]
bedroom dresser. The parties stipulated that the notes
contained therein were written in the [petitioner’s]
handwriting. The [petitioner] was a member of the fire
brigade at work and had received training in chemical
fires and hazardous materials. The [petitioner] was
familiar with spontaneous combustion caused by the
combination of alkalies and acids. The [petitioner]
admitted writing various phrases in the notebook, such
as ‘lock box in shed,’ ‘tool box,’ ‘acetone,’ ‘alcohol
clorox,’ ‘alm foil,’ ‘dry run,’ ‘rope kds drs,’ ‘straps,’ ‘pil-
low,’ ‘oil in can,’ ‘rid of stuff,’ ‘glvs,’ ‘hat,’ ‘shirt,’ ‘cigs,’
and ‘ldr.’ The [petitioner] stated that these abbreviations
could have been a camping list, but that he did not know
why he wrote these abbreviations.’’ State v. Wargo, 255
Conn. 113, 117–19, 763 A.2d 1 (2000).
‘‘On direct examination, [the state’s associate medical
examiner, Malka] Shah testified about the results of the
autopsy that she had performed on the victim. Shah
explained that the victim’s body had been burned
beyond recognition, and that the victim could be identi-
fied only by reference to her dental records. Shah fur-
ther stated that the victim’s body was so badly charred
that she was unable to conduct an examination of the
victim’s skin. Shah, however, indicated that she was
able to examine the victim’s internal organs, including
her lungs. Shah stated that, on the basis of her examina-
tion of those organs, the victim ‘definitely’ had died
prior to the fire.’’ Id., 119–20. ‘‘Shah explained that the
lack of soot in the victim’s lungs and larynx and on the
victim’s tongue, coupled with the low level of carbon
monoxide in her blood, led her to conclude that the
victim ‘was definitely dead before the fire.’ ’’ Id., 120
n.7. ‘‘Moreover, although Shah testified that she could
not determine either the cause of the victim’s death or
the manner in which she had died, Shah’s examination
of the victim’s internal organs revealed that the victim
had not died of natural causes.’’ Id., 120.
The petitioner was convicted of one count of murder
in violation of General Statutes § 53-54a (a), two counts
of arson in the first degree in violation of General Stat-
utes § 53a-111 (1) and (4), one count of tampering with
physical evidence in violation of General Statutes § 53a-
155 (a) (1), and two counts of risk of injury to a child
in violation of General Statutes (Rev. to 1993) § 53-21.
As noted, his conviction was affirmed by this court and
our Supreme Court.
On July 25, 2005, the petitioner filed an action seeking
a writ of habeas corpus (first habeas action) on the
following bases: (1) that he is actually innocent of the
crimes of which he was convicted; (2) that his right to
due process was violated because the expert testimony
presented at his criminal trial regarding the cause of
the victim’s death and the cause and origin of the fire
was false and unreliable; (3) that his trial attorney pro-
vided ineffective assistance because he had a conflict
of interest in representing him in a civil contingent fee
matter against his homeowners insurance carrier and
in the criminal matter giving rise to the present habeas
petition; and (4) that his trial attorney was ineffective
in his cross-examination of the witnesses who testified
as to the cause of the victim’s death and the fire science
evidence.
Following a ten day trial, the habeas court, Schuman,
J. (first habeas court), issued a memorandum of deci-
sion dated January 20, 2011, in which it rejected all four
of the petitioner’s claims and denied his petition. The
habeas court thereafter granted the petitioner’s petition
for certification to appeal to this court.
On appeal, the petitioner, who was then represented
by Attorney Christopher Y. Duby, challenged only the
first habeas court’s rulings that the petitioner’s trial
counsel had a conflict of interest and inadequately
cross-examined the state’s expert witnesses regarding
the cause of the victim’s death and the cause of the fire
in accordance with State v. Porter, 241 Conn. 57, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998), which was decided a few
months after the conclusion of the petitioner’s criminal
trial. Wargo v. Commissioner of Correction, 144 Conn.
App. 695, 73 A.3d 821 (2013), appeal dismissed, 316
Conn. 180, 112 A.3d 777 (2015). This court affirmed the
judgment of the first habeas court. Id.The petitioner thereafter filed the present habeas
action, alleging ineffective assistance of Duby in appeal-
ing from the first habeas court’s denial of his first habeas
petition.2 Specifically, the petitioner claimed that Duby
was ineffective in failing to challenge the first habeas
court’s rejection of his actual innocence and due pro-
cess claims. The petitioner further claimed that Duby
was ineffective in failing to ‘‘adequately and effectively
present the claim that the petitioner’s right to [the]
effective assistance of trial counsel was violated.’’
On November 17, 2016, the habeas court, Sferrazza,
J., issued a memorandum of decision, following an evi-
dentiary hearing, concluding that the petitioner failed
to prove that Duby’s performance was deficient or that
the petitioner was thereby prejudiced. Accordingly, the
habeas court denied the petition for a writ of habeas
corpus. The habeas court thereafter granted certifica-
tion to appeal and this appeal followed.
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . . To satisfy the prejudice prong, a claim-
ant must demonstrate that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
. . . A reasonable probability is a probability sufficient
to undermine confidence in the outcome. . . . In its
analysis, a reviewing court may look to the performance
prong or to the prejudice prong, and the petitioner’s
failure to prove either is fatal to a habeas petition.’’
(Citations omitted; internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 201 Conn.
App. 1, 11–13, 242 A.3d 107, cert. denied, 335 Conn. 983,
242 A.3d 105 (2020). With these principles in mind, we
turn to the petitioner’s specific claims of ineffective
assistance of his first habeas appellate counsel.3
I
The petitioner first claims that the habeas court
improperly concluded that Duby did not render ineffec-
tive assistance by failing to challenge on appeal the first
habeas court’s rejection of his contention that he was
actually innocent of the crimes of which he was con-
victed. We disagree.
‘‘Habeas corpus relief in the form of a new trial on
the basis of a claim of actual innocence requires that
the petitioner satisfy . . . two criteria . . . . [T]he
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 infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty
of the crime. . . .
‘‘As to the first prong, [our Supreme Court has]
emphasized . . . that the clear and convincing stan-
dard . . . 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 when-
ever the evidence is loose, equivocal or contradictory.
. . . [The standard requires] extraordinarily high and
truly persuasive demonstration[s] of actual inno-
cence. . . .
‘‘Moreover, actual innocence [must be] demonstrated
by affirmative proof that the petitioner did not commit
the crime. . . . 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 committed the crime, or that no crime actually
occurred. . . . Clear and convincing proof of actual
innocence does not, however, require the petitioner to
establish that his or her guilt is a factual impossibility.
. . . In part for these reasons, [our Supreme Court has]
emphasized . . . that truly persuasive demonstrations
of actual innocence after conviction in a fair trial have
been, and are likely to remain, extremely rare.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Bowens v. Commissioner of Correc-
tion, 333 Conn. 502, 518–19, 217 A.3d 609 (2019).
The first habeas court rejected the petitioner’s claim
of actual innocence with little discussion, concluding
that ‘‘the petitioner offered no newly discovered evi-
dence, as our case law defines that phrase.’’ Wargo v.
Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX (January 20, 2011) (Schu-
man, J.). The first habeas court further held: ‘‘[T]he
petitioner did not prove by clear and convincing evi-
dence that he is actually innocent. Even the petitioner’s
experts concluded that the cause of death and the cause
of the fire should remain undetermined. Thus, the evi-
dence is not clear and convincing that the victim died
on her own accord and that the fire was accidental.’’ Id.In the present action, the habeas court rejected the
petitioner’s argument that Duby was ineffective in fail-
ing to challenge the first habeas court’s denial of his
actual innocence claim. The habeas court agreed with
the first habeas court’s conclusion that the petitioner
produced no newly discovered evidence that affirma-
tively proved his actual innocence.
The petitioner now argues that he ‘‘is actually inno-
cent due to the inherent unreliability of the scientific
evidence presented at [his] criminal trial.’’ The petition-
er’s argument is unpersuasive in that unreliable evi-
dence cannot logically constitute affirmative proof of
actual innocence.4 Moreover, even if the petitioner had
proven that the scientific evidence presented by the
state at the underlying criminal trial was unreliable,
such a determination might undermine the jury’s guilty
verdict, but it is not affirmative proof of the petitioner’s
innocence. See Bowens v. Commissioner of Correction,
supra, 333 Conn. 520 (‘‘[s]imply casting doubt on the
reliability of a state’s witness, even a star witness, fails
to qualify as affirmative proof of innocence’’); Horn v.
Commissioner of Correction, 321 Conn. 767, 803, 138
A.3d 908 (2016) (discrediting evidence on which convic-
tion rested does not revive presumption of innocence).
On the basis of the foregoing, we agree that the peti-
tioner failed to present proof that would tend to estab-
lish that he could not have committed the crime, a third
party committed the crime, or that no crime actually
occurred. Because the petitioner did not present affir-
mative proof of his innocence, he has failed to demon-
strate that there was a reasonable probability that he
would have prevailed on an appeal from the first habeas
court’s denial of his actual innocence claim. Accord-
ingly, the habeas court did not err in concluding that
Duby’s decision not to pursue the petitioner’s actual
innocence claim on appeal did not constitute ineffective
assistance of counsel.
II
The petitioner next claims that Duby provided inef-
fective assistance of counsel by failing to challenge
the first habeas court’s rejection of his claim that his
constitutional right to due process was violated because
his conviction was based on false and scientifically
invalid evidence, specifically, the expert testimony of
Shah and McGurk, pertaining to the cause of the victim’s
death and the cause and origin of the fire. We are not
persuaded.
In Horn v. Commissioner of Correction, supra, 321
Conn. 800, our Supreme Court acknowledged that Con-
necticut courts have not yet resolved the question of
whether the state’s unknowing use of allegedly false
evidence violates due process.5 The court explained:
‘‘Although [a] majority of the federal circuit courts
require a knowing use of perjured testimony by the
prosecution to find a violation of due process . . . the
United States Court of Appeals for the Second Circuit
has held that, when false testimony is provided by a
government witness without the prosecution’s knowl-
edge, due process is violated . . . if the testimony was
material and the court [is left] with a firm belief that
but for the perjured testimony, the defendant would
most likely not have been convicted. . . . Ortega v.
Duncan, 333 F.3d 102, 108 (2d Cir. 2003).’’ (Citation
omitted; internal quotation marks omitted.) Horn v.
Commissioner of Correction, supra, 801.
In Horn, the court expressly declined to adopt Ortega
or otherwise resolve the issue of whether an unknowing
use of false evidence could furnish the basis for habeas
relief, instead concluding that the petitioner had not
established conclusively that the witnesses had commit-
ted perjury and that, even without the witnesses’ testi-
mony, there was no reasonable probability that the peti-
tioner would not have been convicted. Id., 801–802.
Accordingly, the court concluded that the petitioner
had not been deprived of his constitutional due process
right to a fair trial. Id., 802.
Similarly, the first habeas court here concluded that,
even if the petitioner’s due process claim was cogniza-
ble under Ortega, he failed to prove that the evidence
adduced at his criminal trial was false or scientifically
invalid. The first habeas court reasoned: ‘‘[T]he peti-
tioner does not present evidence of any materially false
testimony, such as a witness recanting on an issue of
fact. Rather, the petitioner presents only different
experts who disagree with the experts who testified at
the criminal trial on matters of opinion, such as the
cause of the fire and the cause of death. There is no
reason or authority for granting habeas relief solely on
that basis, lest habeas become simply an opportunity
for a prisoner to retry his case using different experts.’’
Wargo v. Warden, supra, Superior Court, Docket No.
CV-XX-XXXXXXX.
Even if we assume without deciding that the peti-
tioner set forth a valid due process claim under Ortega,
we agree with the first habeas court’s conclusion that
the petitioner failed to establish that the scientific evi-
dence admitted at his criminal trial was false or scientifi-
cally invalid. The petitioner argues that he presented
evidence at his first habeas trial that ‘‘a forensic patholo-
gist cannot properly conclude that the absence of soot
deposits in the throat or lungs, and the lack of elevated
carbon monoxide levels in the blood, means that a vic-
tim was dead before a fire started.’’ The petitioner fur-
ther contends that he presented evidence at his first
habeas trial ‘‘to establish that there was an alternative
explanation for the straight line of holes’’ that was dis-
covered in the room in which the victim’s body was
found. As described by the petitioner’s expert in this
action, however, the evidence presented at his first
habeas trial established ‘‘alternate explanations’’ to the
conclusions reached by the state’s experts in the peti-
tioner’s underlying criminal trial. The existence of alter-
native explanations falls short of proving that the expert
opinions rendered by Shah and McGurk were false or
scientifically invalid. The first habeas court’s conclu-
sion that the evidence presented by the petitioner at his
first habeas trial amounted to differing expert opinions,
versus proof that the evidence was scientifically invalid,
was therefore consistent with the expert testimony
adduced by the petitioner at his habeas trial here.
Moreover, both Shah and McGurk, on cross-examina-
tion at the petitioner’s criminal trial, acknowledged the
existence of alternative explanations for their conclu-
sions regarding the cause of the victim’s death and the
cause and origin of the fire. As the petitioner aptly
notes in his brief to this court, Shah conceded at the
petitioner’s criminal trial that she had performed an
autopsy on another burn victim on the same day as the
autopsy of the victim in this case and that the other
victim also had no soot or carbon monoxide in her
lungs. Similarly, when he was cross-examined at the
petitioner’s criminal trial, McGurk acknowledged that
there were ‘‘other explanations for the burn pattern
other than the use of an accelerant.’’ Therefore, the jury
was made aware of, and presumably considered, the
existence of alternative explanations to the conclusions
reached by Shah and McGurk.
On the basis of the foregoing, we agree with the first
habeas court that the petitioner failed to prove that his
conviction was based on false or scientifically invalid
evidence, and we are not left with a firm belief that the
petitioner would most likely not have been convicted if
the jury had been presented with additional competing
evidence such as that adduced by the petitioner at his
first habeas trial. We therefore conclude that it is not
likely that the petitioner would have prevailed on an
appeal from the first habeas court’s rejection of his due
process claim and that the habeas court did not err in
holding that the petitioner failed to meet his burden of
demonstrating that Duby’s decision not to pursue that
claim in his appeal from the first habeas court’s decision
constituted ineffective assistance of counsel.
III
Finally, the petitioner claims that Duby was ineffec-
tive in failing to pursue on appeal his claim that his
trial counsel, M. Hatcher Norris, was ineffective in chal-
lenging the expert testimony adduced by Shah and
McGurk pertaining to the cause of the victim’s death
and the cause of the fire.6 The petitioner now argues that
Duby should have challenged the first habeas court’s
rejection of his claim that Norris was ineffective in
challenging Shah’s testimony because ‘‘evidence under-
cutting Shah’s claims concerning the time of death
would have substantially weakened the state’s case
against [him].’’ As to McGurk, the petitioner argues that
Duby should have pursued on appeal his claim that
Norris failed to present evidence rebutting McGurk’s
opinion that the only possible source of the line of
holes was an ignitable liquid and that he should have
emphasized McGurk’s failure to employ the scientific
method when he investigated the fire. We disagree.
We begin by noting that ‘‘[a] claim such as [that raised
by the petitioner here], which concerns the ambit of
cross-examination, falls short of establishing deficient
performance. . . . An attorney’s line of questioning on
examination of a witness clearly is tactical in nature.
[As such, this] court will not, in hindsight, second-guess
counsel’s trial strategy. . . . The fact that counsel argu-
ably could have inquired more deeply into certain areas,
or failed to inquire at all into areas of claimed impor-
tance, falls short of establishing deficient performance.’’
(Citation omitted; internal quotation marks omitted.)
Ruiz v. Commissioner of Correction, 195 Conn. App.
847, 861, 227 A.3d 1049, cert. denied, 335 Conn. 915,
229 A.3d 729 (2020).
In assessing the petitioner’s claim that Norris was
ineffective in challenging Shah’s testimony, the first
habeas court found, inter alia, that Norris ‘‘made the
essential point that the absence of soot and carbon
monoxide in the victim’s body did not necessarily imply
that the victim died before the fire. Norris emphasized
this point by eliciting the ironic fact that, on the same
day [that Shah performed the autopsy in this case],
Shah did an autopsy of another burn victim who died
with no soot or carbon monoxide in her lungs.’’ (Foot-
note omitted.) Wargo v. Warden, supra, Superior Court,
Docket No. CV-XX-XXXXXXX. The first habeas court con-
cluded: ‘‘There is no evidence . . . that further ques-
tioning [of Shah] would have benefited the petitioner.
Even the petitioner’s pathology expert at the [first]
habeas trial could not cite any discussion in the litera-
ture of victims of flashover fires who had died without
soot or carbon monoxide in their body.’’ Id. ‘‘Norris had
also prepared commendably for cross-examination by
retaining his own pathologist as an expert consultant,
speaking to another noted pathologist, and doing
research and reading in the field.’’ Id.
In arguing that Duby should have pursued his claim
that Norris was ineffective in failing to present evidence
that undercut Shah’s claims concerning the time of the
victim’s death, the petitioner ignores the fact that Norris
did present evidence of that nature by way of requiring
Shah herself to acknowledge the fact that she had exam-
ined the body of another burn victim who did not have
soot in her lungs or carbon monoxide in her blood. As
the first habeas court explained, the evidence that the
petitioner presented at his first habeas trial did not
undermine Shah’s opinions any more than her own con-
cession did. We therefore agree with the first habeas
court’s conclusion that Norris did not render ineffective
assistance of counsel in his challenge to Shah’s opinion
as to the time of the victim’s death.
In rejecting the petitioner’s claim that Norris was
ineffective in his challenge to McGurk’s testimony, the
first habeas court reasoned, inter alia: ‘‘On cross- and
recross-examination, Norris brought out that McGurk
found no ‘rainbow effect,’ which one might expect from
the pouring of an ignitable liquid, that forensic tests
revealed no evidence of accelerants in the floor or in
the petitioner’s clothing, that McGurk could not say
what type of accelerant was used, that there were expla-
nations for the pattern on the floor that did not involve
accelerants, and that McGurk turned the property back
to the petitioner after the fire, which he would not have
done if he suspected arson at the time.’’ Id. The first
habeas court further explained: ‘‘The petitioner pre-
sented the testimony of Christopher Wood as an exam-
ple of the type of expert testimony that Norris should
have presented. Wood is a fire protection engineer who
did prove knowledgeable and articulate on the [witness]
stand. Prior to his testimony, Wood had tested the
hypothesis that an accidental fire that goes to flashover
could produce a burn pattern similar to the line of holes
in this case. Wood demonstrated that a similar burn
pattern could occur as a result of, and directly over, a
gap or seam in the carpet padding, which would leave
the floor with less protection. Norris, however, had no
obligation to call an expert who would have conducted a
similar experiment or who would have provided similar
testimony. The choice of which expert to call is largely
a matter of professional judgment.’’ Id.
The petitioner argues that Duby should have pursued
on appeal his claim that Norris provided ineffective
assistance of counsel when he failed to ‘‘challenge
McGurk’s testimony with scientific evidence flatly refut-
ing his claims’’ ‘‘that the only possible source of the
line of holes was an ignitable liquid . . . .’’ He asserts
that Norris should have focused on McGurk’s alleged
failure to employ the scientific method by presenting
the testimony of an expert such as Wood. ‘‘A trial attor-
ney is entitled to rely reasonably on the opinion of an
expert witness . . . and is not required to continue
searching for a different expert [or for multiple experts].’’
(Citation omitted; internal quotation marks omitted.)
Brian S. v. Commissioner of Correction, 172 Conn.
App. 535, 542–43, 160 A.3d 1110, cert. denied, 326 Conn.
904, 163 A.3d 1204 (2017). Thus, Norris’ choice of
experts does not give rise to a claim of deficient perfor-
mance. Moreover, the first habeas court found that
‘‘McGurk did follow the essential steps in the scientific
method. In particular, McGurk used deductive reason-
ing in testing his hypothesis that the fire was incendiary
by eliminating all reasonable alternative explanations.’’7
Wargo v. Warden, supra, Superior Court, Docket No.
CV-XX-XXXXXXX. The petitioner has not argued that the
first habeas court’s finding was clearly erroneous.
The petitioner’s argument is also unpersuasive in light
of the fact that Norris elicited from McGurk on cross-
examination a concession that there were explanations
for the pattern on the floor that did not involve acceler-
ants. It was therefore unnecessary for Norris to present
expert testimony to refute McGurk’s initial testimony
that the only possible source of the pattern on the floor
was an accelerant.
Even if Norris’ challenge to the testimony of Shah and
McGurk could be considered deficient, the petitioner
failed to prove that he was thereby prejudiced. The
petitioner argues that, ‘‘[h]ad the jury been made aware
of this critical scientific evidence, there is a reasonable
probability that the outcome of the trial would have
been different.’’ This argument is unpersuasive because,
as noted herein, Norris was able to demonstrate through
his effective cross-examination of Shah and McGurk
that their conclusions were not beyond reproach. Shah
was forced to acknowledge before the jury that not all
victims who die in a fire have soot in their lungs and
carbon monoxide in their blood. Similarly, McGurk
acknowledged that there were reasonable explanations
for the cause and origin of the fire that did not involve
accelerants. Faced with those concessions by Shah and
McGurk, the jury still found that the petitioner was
guilty beyond a reasonable doubt of the crimes with
which he had been charged. It is therefore not reason-
ably probable that Duby would have succeeded in dem-
onstrating that Norris’ counsel was constitutionally
ineffective. Accordingly, the habeas court properly con-
cluded that Duby’s decision not to pursue this claim
on appeal did not constitute ineffective assistance of
counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
petitioner’s full name or to identify the victims or others through whom the
victims’ identities may be ascertained. See General Statutes § 54-86e.
1
Although the petitioner had filed additional prior habeas petitions, they
have no bearing on the issues presented in this appeal. For ease of reading,
we therefore refer to the petition from which the claims raised herein arise,
which was filed on July 25, 2005, as the first habeas action.
2
The petitioner also alleged prosecutorial misconduct, and ineffective
assistance of his trial counsel, appellate counsel, and his first habeas counsel.
The habeas court dismissed those allegations and the petitioner has not
challenged that ruling.
3
The transcripts of the petitioner’s criminal trial were not introduced into
evidence at the petitioner’s second habeas trial. He sought to rectify the
record to include them, but that motion was denied. This court granted
review of the denial of the petitioner’s motion to rectify, but denied the
relief requested therein. The petitioner now asks this court to take judicial
notice of those transcripts. We decline to revisit this issue.
4
The petitioner also contends that the ‘‘expert testimony leading to a
criminal conviction later shown to be unreliable under prevailing scientific
standards may qualify as ‘newly discovered’ evidence in collateral appeals.’’
Because we agree with the habeas court and the first habeas court that the
petitioner failed to present affirmative proof of his actual innocence, we
need not address this argument.
5
The petitioner does not allege, nor was there any evidence, that the state
knowingly presented or failed to correct false testimony.
6
Although, as noted; see footnote 3 of this opinion; the transcripts of the
petitioner’s underlying criminal trial were not introduced as evidence before
the habeas court in this matter, and are, therefore, not available for our
review, we are able to assess the petitioner’s claim from the recitation of
facts set forth by our Supreme Court and the first habeas court. The petitioner
does not contend that those facts were erroneous. He challenges the legal
conclusions drawn from those facts, and we address those arguments herein.
7
Specifically, the first habeas court found: ‘‘The petitioner has pointed to
no case law authority holding that McGurk’s methodology was not generally
accepted in the scientific community. Cf. State v. Sharp, 395 N.J. Super.
175, 180–82, 928 A.2d 165 (2006) (fire causation opinion based on process
of elimination technique admitted under [test in Frye v. United States, 293
F. 1013 (D.C. Cir. 1923)). The petitioner instead relies on the National Fire
Protection Association 921 Guide for Fire and Explosion Investigations (1995
Ed.) (NFPA 921), which provides that the scientific method is the systematic
approach recommended in fire investigations. The NFPA 921 then defines
the scientific method as containing six steps: recognizing the need for investi-
gation, defining the problem, collecting data, analyzing the data, developing
a hypothesis, and testing the hypothesis through deductive reasoning. . . .
‘‘The petitioner also supplies no authority that, to be admissible at the
time of trial, cause and origin testimony had to follow the scientific method
outlined in the NFPA 921. In any case, the testimony recited [previously]
establishes that McGurk did follow the essential steps in the scientific
method. In particular, McGurk used deductive reasoning in testing his
hypothesis that the fire was incendiary by eliminating all reasonable alterna-
tive explanations.’’ (Citation omitted.) Wargo v. Warden, supra, Superior
Court, Docket No. CV-XX-XXXXXXX.